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PRACTICAL  SUGGESTIONS 


FOR   THE 


Management  of  Law-Suits 

AND    CONDUCT    OF    LITIGATION 

BOTH 

IN  AND  OUT  OF   COURT 


BY 
JOHN     C.     REED 

COUNSELLOR  AT  I^W 


NEW   YORK 
JAMES   COCKCROFT  &    COMPANY 

I  876 


T 


COrVRIGHT,   1875, 
BY  JOHN   C.  RKBD. 


PREFACE. 


Mr.  Bishop,  commenting  on  the  subject  of 
practice,  uses  the  following  striking  words :  "  Our 
own  country  is  so  cut  up  into  States,  each  having 
its  own  peculiar  practice,  that  we  have  not  had  a 
general  book  of  American  law  practice,  and  it  is 
impossible  any  such  book  should  be  written.  There 
are  some  general  principles  which  run,  and  must  run, 
through  eveiy  system  of  legal  practice ;  and  an 
author,  sufficiently  skillful,  might  do  an  excellent 
service  by  culling  out  these,  and  presenting  them, 
detached  from  local  rules  and  local  usages,  for  use 
everywhere.  But  until  this  is  done,  we  can  not 
expect  to  have  a  more  useful  work,  of  a  general 
sort,  relating  to  this  subject,  than  this  old  book  by 
Mr.  Tidd  [his  Practice].  It  can  hardly  be  said  to 
be  a  scientific  book  ;  yet,  on  the  other  hand,  it  is  not 
exactly  a  digest.  There  is  a  science  in  law  practice, 
but  it  has  not  yet  been  developed  by  any  writer."  ^ 

The  author's  theme,  in  this  work,  is  not  what  is 
technically  called  Practice :  it  is  the  closely-related 
subject  of  the  proper  management,  in  litigation,  of 
the  plaintiff's  case,  or  of  the  defense.  This  proper 
management  is  according  to  leading  principles,  few 

First  Book,  §  59S. 


^^ 


TV  PREFACE. 

and  easily  discovered,  and  so  general,  that  they  arc 
as  much  applied,  in  forensic  controversy,  on  the  Pa- 
cific coast  as  on  the  Atlantic,  around  the  Lakes  as 
beside  the  Gulf.  The  lawyer  in  Maine  wins  his  case 
by  observing  the  same  rules  of  conduct  as  his  pro- 
fessional brother  in  California.  The  lav/  of  the  two 
States  may  differ  widely  in  many  particulars,  and  the 
practitioner  must  know  all  the  peculiarities  of  the 
local  law ;  but  this  no  more  requires  in  each  State  a 
different  science  of  managing  cases,  than  the  great  di- 
versity in  the  face  of  the  earth,  and  in  the  language 
and  character  of  the  inhabitants,  requires  that  a  new 
manual  of  the  art  of  war  be  compiled  for  military 
operations  in  every  new  country.  The  Eastern  and 
the  Western  lawyer  alike  seek  to  provide  certain 
superiorities  to  the  other  side  in  their  preparation  ; 
and  they  essay,  too,  such  a  conduct  of  the  trial,  when 
it  shall  come,  as  will  clearly  present  and  maintain 
the  prepared  superiorities.  This  suggestion  shows, 
at  once,  that  the  principles  of  right  preparation  of  a 
case,  and  those  of  the  proper  conduct  of  its  trial, 
are  so  comprehensive,  that  all  local  differences, 
whether  of  substantive  or  remedial  law,  are  ab- 
sorbed and  disappear  in  them.  These  general  prin- 
ciples are  of  the  very  first  importance  to  the  prac- 
titioner. If  he  is  not  the  master  of  the  true  art  of 
getting  up  and  of  trying  his  case,  any  success  that 
he  may  have  will  be  only  accidental,  and  he  must 
soon  give  way  in  the  arena  of  practice  to  his  more 
practical  brethren. 


PREFACE.  V 

In  compiling,  for  the  first  time,  the  manual  of 
forensic  controversy,  the  author  docs  not  pretend  to 
have  established  anything  new  :  he  only  claims  that  he 
has  presented  and  illustrated  the  all-important  prin- 
ciples which  every  good  lawyer  uses  in  conducting 
litigation.  His  business  is  throughout  with  those 
old  principles,  which  no  young  lawyer  can  com- 
mence studying  too  soon,  and  to  which  the  greatest 
more  and  more  conforms  while  he  is  maintaining 
and  extending  his  leadership.  It  is  time  that 
these  principles  be  properly  elucidated  ;  and  that  the 
young  lawyer,  instead  of  being  left  to  pick  them  up, 
unsystematically  and  at  haphazard,  in  a  long  mis- 
spent novitiate  of  practice,  be  furnished  with  a 
guide-book,  clearly  explaining  to  him  how  to  under- 
standingly  take,  ably  prepare,  and  skillfully  try"  his 
cases.  The  author  believes  that  he  has,  in  the 
following  pages,  given  to  his  younger  brethren  this 
needed  book. 

The  reader  is  referred  to  the  first  chapter  follow- 
mg,  entitled  General  Divisions,  for  a  fuller  and  more 
precise  statement  of  the  scope  of  the  work. 

J.  C.  R 

April,  1875. 


TABLE    OF    CONTENTS. 


GENERAL  DIVISIONS. 

pAGa 
Litigation  defined.  Why  the  work  is  named  as  it  is.  Lit- 
igation compared  with  warfare,  and  with  certain 
games.  How  good  generals,  players,  and  lawyers 
generally  win.  How  litigation  more  resembles  war- 
fare than  it  does  a  game.  Art  of  preparing  a  case 
parelleled  with  strategy,  art  of  trying  with  tactics. 
Superior  importance  of  strategy  and  preparation. 
Conduct  of  the  case  out  of  court.  Conduct  of 
the  case  in  court.  Litigation  not  to  be  too  closely 
compared  to  Avarfarc.  Contents  of  Conduct  out  of 
Court,  or  Book  L  Contents  of  Conduct  in  Court, 
or  Book  H.  The  Successful  Lawyer  to  be  drawn 
in  the  Final  Chapter 


BOOK  L 

CONDUCT  OUT   OF  COURT. 
CHAPTER    L 

INTRODUCTORY. 

Practitioner  distinguished  from  judge,  and  law-author. 
Description  of  lawyer  by  Mr.  Bishop.  The  lawyer 
must  be  master  of  the  art  of  conducting  litigation. 


vjii  CONTENTS. 

rARS 

He  is  the  partial  deputy  of  his  client.  Parallels  of 
husband,  parent,  general,  and  army.  Adversaries 
of  equal  zeal  and  fidelity  matched.  Object  of  the 
legal  profession  and  courts.  Knowledge  and  quali- 
fications assumed  for  the  reader.  Great  importance 
of  talent  for  understanding  facts.  Litigation  is 
cither  disputed  facts,  or  disputed  law,  or  both  dis- 
puted. Distinction  and  union  of  law  and  fact  in 
litigation.  Both  elements  always  present  in  every 
case.  Aim  of  preparation  of  the  ease  to  secure 
legal  and  evidential  advantages.  Instances  of  prep- 
aration of  superior  advantages.  Human  nature 
must  be  understood  by  the  lawyer.  Force  of  com- 
bined reason  and  conscience  of  mankind.  Com- 
mon views,  sentiments,  creeds,  and  prejudices. 
Personal  influence.  The  law  of  the  books  not  that 
administered  at  Jiisi  prius.  Sway  of  the  feelings. 
All  these  things  to  be  considered  by  the  lawyer, 
when  he  weighs  the  chances  of  litigation,         .         .       9 

CHAPTER    II. 

A    CASE    OFFERED. 

Details  of  an  offered  case  to  be  mastered  as  soon  as  pos- 
sible. Unintricale  cases.  Quintilian's  advice  to  the 
advocate.  Increasing  carefulness  of  modern  in- 
quiry. Further  search  after  sifting  the  client. 
Documents  and  witnesses  to  be  closely  examined. 
Instance  of  witnesses  attacking  the  character  they 
had  been  called  to  support.  A  plaintiff  nonsuited 
because  his  only  witness  knew  nothing.  A  grant 
bearing  date  before  the  organization  of  county  pur- 
porting to  have  issued.  Exhaustiveness  of  investi- 
gation necessary  before  the  lawyer  can  advise.  Mr. 
Warren's  advice.     The  lawyer  who  only  seeks  to 


CONTENTS.  ix. 

rACi 
pocket    fees.       Anticipation    of    advcrsarj'i    case 
hinted    at.     Example   from    Judge    Coolcy,   of    an 
elaborate  investigation  of  a  title,       .         .         .         •     ^7 

CHAPTER    III. 

A  CASE  OTY'EV.^'D— {continued). 

Restatement  of  duty  of  lawyer  advising.  Evil  of  pro- 
crastination. Necessary  celerity  of  his  decision. 
The  lawyer  consulted  is  to  see  what  case  is  made. 
Two  pertinent  excerpts  from  Professor  Amos. 
Client  to  be  advised  according  to  the  probabilities. 
The  event  can  not  be  predicted  nor  assured. 
Parallel  of  the  general  attacking  or  defending. 
Multiplicity  of  legal  and  evidential  superiorities. 
When  the  offered  case  should  be  taken.  Character 
of  good  lawyer.  The  lawyer  who  is  never  danger- 
ous till  he  has  lost.  A  theory  of  the  case  neces- 
sary. The  lawyer  who  learns  at  once  ever3-thing 
that  he  can.  Burr's  avoidance  of  bad  cases.  Ex- 
ample of  a  successful  lawyer  of  the  author's  ac- 
quaintance  44 

CHAPTER    IV. 

A    CASE     OFFERED {concluded). 

Timidity  and  overcaution  in  the  lawyer  reprehended. 
Early  overfastidiousness  of  Hall  in  seeking  after 
good  cases.  Good  cases  not  to  be  sviffocated. 
David  Paul  Brown  as  to  the  ethics  of  taking  and 
refusing  cases.  The  client  can  command  the  lawyer 
to  prosecute  all  of  his  legal  rights.  Declining  cases. 
Lawyers  too  busy  to  counsel  the  beginning  of  liti- 
gation. Unpopular  and  desperate  cases.  Self- 
education  of  the  young  lawyer,  .         .         .         •     57 


CONTENTS. 


CHAPTER    V. 

THE     PRINCIPLES     OF     PREPARATION;     AND      PREPARA- 
TION     OF    THE    EVIDENCE. 

Elements  of  preparation  looked  at  serially.  Begin- 
ning of  preparation.  First  duty  of  preparation  is 
to  assure  apparent  existing  advantages.  Sifting 
witnesses,  and  taking  minutes.  Inducing  witness  to 
write  a  statement  of  his  testimony.  Other  exam- 
ples of  assuring  apparent  existing  advantages. 
Neglect  of  this  duty,  so  plain,  is  unpardonable. 
Second  object  of  preparation  is  to  obtain  other  ad- 
vantages. Examples.  A  mine  of  facts  often  long 
inexhaustible.  The  third  object  of  preparation  is 
to  abridge  the  advantages  of  your  adversary.  Ex- 
amples. Instance  of  neglecting  opportunity  to 
cripple  an  adversary.  Objects  of  preparation  re- 
stated. Injury  to  self  by  one's  preparation  to  be 
guarded  against.  Examples  where  a  party  hurt 
himself  by  his  evidence.  Preventive  of  these  self- 
caused  injuries.  Anticipation  of  adversary's  case. 
Secrets  of  the  case  not  to  be  always  confided  to  the 
client.  Providing  against  escape  of  one's  secrets. 
The  law  the  great  guide  in  the  preparation  of  the 
evidence.  Thorough  preparation  enjoined.  Napo- 
leon's advice  to  order  up  every  battalion  before  the 
fight,  and  Mr.  Warren's  to  ^zrrprove  rather  than 
under]^YO\e,  ........ 

CHAPTER    VI. 

PREPARATION  ON  THE  LAW  OF  THE  CASE. 

The  student  must  first  observe  the  courts  a  while.  Fo- 
rensic dispute  more  over  facts  than  law.     AVhy  law 


PACH 


CONTl^NfS.  xi 

PA  as 

less  discussed  than  facts.  Occasional  uncxpccled 
trinr.:phs  on  law  questions.  Lord  Eldon's  victory, 
wiien  a  ^oung  man,  in  Akroyd  v.  Smithson.  Ers- 
kine's  first  effort.  Importance  of  attending  to  the 
law  in  every  part  of  the  case.  Process  and  aim  of 
legal  preparation.  Adverse,  favorable,  and  doubt- 
ful law.  The  law  a  great  armory  of  remedies. 
Suing  the  surety  in  his  own  county,  when  he  could 
have  been  sued  elsewhere.  Example  of  cross- 
prosecutions.  Retreat  nearly  always  possible  to 
the  good  lawyer.  A  particular  line,  when  chosen, 
not  to  be  too  stubbornly  adhered  to.  Legal  supe- 
riorities, like  evidential,  discovered  by  careful  ex- 
amination. Growing  tendency  of  lawyer  to  found 
his  combinations  on  sound  law\  Tendency  to  sliun 
doubtful  legal  questions.  Search  for  principles 
sometimes  necessary.  Example,  from  Mr.  Bisliop's 
practice,  of  establishing  a  new  principle.  Averse- 
ness  of  judges  to  making  avowedly  new  rulings. 
How  a  new  law-point  is  to  be  managed.  Over- 
refinement  deprecated.  The  legal  judgment,  as 
described  by  Mr.  Bishop;  as  described  by  Lord 
Coke.  Brief  consideration  of  preparing  the  plead- 
ings,    94 


CHAPTER    VII. 

OTHER  PARTICULARS  OF  PREPARATION. 

Eminent  counsel  often  devolve  preparation  too  entirely 
on  inferior  associates.  Preparation  by  English  at- 
torneys and  solicitors.  Inherent  superiority  of  the 
American  system.  Views  of  David  Paul  Brown. 
Leading  counsel  should  confer  with  witnesses.  In- 
stance from  Choate's  practice.   The  English  division 


xil  CONTENTS. 

PAOS 

of  labor  between  counsel  and  attorney  not  a  natural 
one.  Lawyers  will  become  better  counsel  by  being 
good  attorneys.  Plurality  of  counsel  advisable. 
Burr's  "  placing  "  of  his  associates.  Conferences. 
Number,  character,  and  "placing"  of  assistant 
counsel  the  business  of  the  leader.  Proper  spirit 
and  behavior  of  associates  towards  each  other. 
Local  counsel.  The  lawyer  must  have  an  intelli- 
gent purpose  in  everything.  Hesitation,  however, 
to  be  avoided.  Quickness  of  Kenyon.  Necessity 
of  quickness.  Circumspection  required.  Self-com- 
posure necessary.  The  lawyer  who  ever  imagines 
llie  scene  of  trial  while  preparing.  Diligence  and 
industry.  Excellence  of  patient  attention.  Rare- 
ness of  undestanding  accurately.  You  should 
always  be  able  to  stand  a  Socratic  examination  on 
your  case.  Advantage  of  this  mastery  in  intricate 
cases.  Transcendent  superiority  of  a  thorough 
knowledge  of  one's  case.  Choate's  preparation. 
Burr's  preparation.  Non-preparation  against 
thorough  preparation.  But  everything  can  not  be 
anticipated  and  provided  for.  He,  who  believes 
that  Providence  only  sends  him  good  cases,  con- 
trasted with  the  good  lawyer,  .         .         .         .116 


CHAPTER    VIII. 

PLAN    OF    CONDUCT, 

The  subject  separated  from  the  other  elements  of  prep- 
aration to  be  understood.  The  general's  plan  of 
the  campaign.  Use  of  the  word  line  in  the  same 
sense  as  plan.  The  right  plan  assures  most  and 
risks  least.  It  includes  the  results  of  preparation, 
properly  marshaled  for  the  litigation.     Plan  of  bat- 


CONTENTS.  xiii 

PAGX 

tie  at  Marathon ;  an  opposite  plan  successful  at 
Leuctra.  Plans  of  battles  only  remote  analogies. 
Example  from  Choate's  practice  of  a  simple  plan. 
Anotlicr  instance  of  a  simple  plan.  Great  results 
often  follow  the  execution  of  a  very  simple  plan. 
Basis  of  the  genius  of  the  general  aii.d  the  lawyer. 
Complex  cases  require  complex  plans.  Example  of 
a  complex  plan  involving  questions  both  of  la\r 
and  fact.  Two  kinds  of  simple  plans  for  palpable 
issues.  Essentials  of  complex  plan.  The  plan 
should  generally  be  as  simple  as  possible.  The 
client  not  to  be  too  severely  judged  against,     .         .  145 


CHAPTER    I  X. 

PLAN  OF  CONDUCT — {fontiiiued). 

When  secrecy  is  necessary,  and  its  importance.  When 
you  can  show  your  hand.  Whether  an  attack  or 
defense  shall  be  bold  or  not.  Provision  in  plan  for 
new  trial  in  case  of  defeat.  Examples.  Difference 
of  the  aggressive  and  the  defensive.  A  defense  may 
be  aggressive.  The  non-aggressive  defense.  Ad- 
vantage of  commanding  the  initiative.  Superiority 
of  the  aggressive  defense.  The  plan  should  be 
neatly  drafted.  Procurement  of  special  legislation. 
Arbitrations  and  references.  Amicable  settlements 
by  the  counsel  of  the  parties  recommended,  .   165 

CHAPTER    X. 

BRIEFS. 

Why  a  chapter  is  given  to  the  subject.  Restricted  sense 
of  the  word,  "  brief,"  in  America.     Contcntsof  an 


xiv  CONTENTS. 


English  brief  according  to  Sellon  and  Tidd.  A 
brief  should  contain  the  whole  preparation.  Policy 
of  such  a  brief  advocated.  Exceptional  memories. 
Digest  of  memoranda.  Advice  of  Mr.  Warren.  A 
brief  is  made  up  gradually.  Advice  of  Mr.  Bishop. 
Whether  the  pleadings  should  be  copied  or  abridged. 
Abstracts  must  be  accurate.  Rareness  of  the  talent 
of  accurate  abridgment.  Statement  of  the  client's 
case.  Caution  against  a  too  favorable  statement. 
The  proofs  to  be  marshaled,  and  a  list  of  the  wit- 
nesses to  be  given.  Copies  and  abstracts  of  docu- 
mentary proof.  There  is  no  Procrustean  model  for 
the  brief.  Anticipation  of  and  preparation  for  col- 
lateral issues  to  be  stated  in  the  brief.  Cautions 
against  any  dangers  apprehended;  advice  of  Mr. 
Warren.  A  perfect  brief.  Draft  of  plan  of  con- 
duct. Voluminous  brief  should  be  indexed.  Co- 
pious directions  of  Mr.  Warren  given.  American 
neglect  of  preparing  elaborate  briefs  earnestly  re- 
prehended. These  is  not  to  be  a  slavish  dependence 
upon  the  brief,  .         .         .         .         .         .         .  iSa 


BOOK  II. 


CONDUCT   IN   COURT. 
CHAPTER    I. 

INTRODUCTORY, 

Correspondence  of  the  subject  of  this  book  to  Tactics. 
Object    of  conduct  in   court.     Talents  for  manag- 


CONTENTS.  ,     XV 

rxr.z 
ing  a  trial.  Greatest  ability  for  trying-  rarely 
united  with  the  greatest  for  preparing.  Unantici- 
pated occurrences  of  a  trial.  Importance  of  pre- 
cedent preparation.  What  counsel  shall  lead  in  the 
conduct  of  a  trial.  Restatement  of  the  essential 
parts  of  preparation.  The  subjects  of  our  two  Books 
especially  run  into  each  other  in  the  plan  of  conduct. 
Spirit  of  proper  conduct  of  the  trial.  Objects  of 
conduct  of  a  trial  summarized.  Consultation  of 
counsel  on  the  eve  of  trial.  Easy  cases.  Con- 
tinuances. You  should,  if  possible,  have  a  con- 
tinuance for  yourself,  and  be  able  to  defeat  that 
meditated  by  your  adversary.     Selection  of  the  jury,  207 


CHAPTER    II. 

OPENINGS. 

In  England,  the  junior  counsel  for  plaintiff  opens  the 
pleadings,  and  the  leader  opens  the  case.  Here, 
both  openings  are  usually  by  the  same  counsel. 
American  tendency  to  concede  the  opening  to  the 
junior  counsel.  Opening  of  facts  not  so  important 
here  as  in  England.  Mr.  Cox's  satisfactory  direc- 
tions as  to  opening  the  pleadings.  The  pleadings 
opened  to  possess  couit  and  jury  of  the  issue.  Mr. 
Cox  as  to  opening  the  plaintiff's  case.  Importance 
of  opening  in  difficult  cases.  No  need  of  the  formal 
division  of  opening  the  pleadings  and  opening  the 
case.  Essentials  of  a  good  opening.  The  duty  too 
often  neglected,  or  perfunctorily  performed.  Facts 
should  not  be  too  crowded  in  a  statement.  Opening 
of  the  defense.  Opening  a  record.  Unfairness  and 
overstatement  reprehended.  Misstatements  in  the 
Attorney    General's   opening    of    the    case   against 


xvi  CONTENTS. 

PACK 

Queen  Caroline  severely  handled  by  Brougham,  in 
her  defense.  Counsel  should  talk  beforehand  with 
the  witnesses.  Destructive  recoil  of  an  unsupported 
opening,       .........  219 


CHAPTER    III. 

BEGINNING  OF  CONDUCT  OF   THE  EVIDENCE. THEEXAMINATlON- 

IN-CHIEF. 

Affirmant  to  make  out  a  prima  facie  case.  Reservation 
by  plaintiff  of  evidence  to  reply  to  defendant's. 
Plaintiff  will  rest  his  case  w^hen  the  proof  entitles 
him  to  the  verdict.  Defendant  will  also  pause  in 
his  evidence,  when  he  has  avoided  or  disproved  the 
plaintiff's  case.  Plaintiff's  reply,  defendant's  rejoin- 
der, and  so  on.  Evidence  both  oral  and  written. 
Main  purpose  of  this  and  the  three  following  chap- 
ters to  discuss  the  examination  of  witnesses.  Ex- 
amination of  witnesses  discussed  under  three  heads, 
viz.,  direct,  cross,  and  the  re-examination.  Reason 
for  discussing  David  Paul  Brown  and  Mr.  Cox 
separately.  Every  question  should  have  an  intel- 
ligent purpose.  In  England,  the  junior  coimsel  for 
plaintiff  examines  the  first  witness.  No  such  Ameri- 
can rule.  Generally  the  counsel  most  familiar  with 
the  expected  proof  should  examine.  Sometimes, 
the  counsel  who  is  to  make  the  principal  argument, 
should  not  examine  at  all.  The  material  allega- 
tions of  the  plaintiff's  pleading  to  be  proven.  Ma- 
terial facts  to  be  drawn  out.  Adverse  facts,  known 
to  the  other  side,  had  better  be  brought  out  at  once. 
Importance  of  knowing  the  narrative  of  the  witness 
well.  First  Golden  Rule  of  David  Paul  Brown,  and 
comment,  insisting  that  the  lawyer  acquaint  himself 


CONTENTS.  xvii 

PAG3 

■with  tlic  testimony  of  his  witnesses,  before  calling 
them.  Second  Golden  Rule,  and  comment,  insist- 
ing that  the  examiner  should  anticipate  the  mood  of 
his  witnf^ss.  'Jliird  and  Fourth  Golden  Rule;  in- 
sisted, that  prudent  preparation  will  provide  against 
the  hostility  of  your  witness.  Fifth,  advising  never 
to  call  a  witness  whom  your  adversary  must  call, 
unexceptionable.  The  Seventh  and  Eighth,  as  to 
proper  questions  and  objections,  also  vmexception- 
abte.  The  Ninth  Golden  Rule,  enforcing  liveliness 
of  examination.  Mr.  Cox's  suggestions  as  to  lead- 
ing questions.  His  caution  as  to  avoiding  conflicts 
among  your  own  witnesses.  Sounding  the  witness 
beforehand  will  show  how  to  avoid  the  evil.  In- 
stance of  party  disproving  his  own  case.  Mr.  Cox's 
cautions  against  witnesses  who  say  too  little  or  too 
much.  lie  differs  wdth  David  Pavil  Brown,  as  to 
treatment  of  your  hostile  witness.  Mr.  Cox's  good 
counsel  for  dealing  with  timid  and  stupid  witnesses. 
Questioning  from  a  region  above  the  comprehension 
of  a  stupid  witness.  Mr.  Cox's  advice  to  observe,  in 
an  examination,  the  order  of  time,  llis  good  advice 
as  to  deliberateness  and  carefulness  in  the  examina- 
tion. Mr.  Cox  as  to  permitting,  or  not,  the  witness 
to  tell  his  story  in  his  own  way.  Importance  of 
sometimes  having  rehearsals  from  the  witnesses  be- 
fore the  trial.     Unnecessary  questions,  .         .  236 


CHAPTER   IV. 

CROSS-EXAMINATION. 

Whether  you  snould  cross-examine   at   all.     Cross-ex- 
amination   overrated   by  the    inexperienced.      Also 


xviii  CONTENTS. 

PACK 

overrated  by  Mr.  Cox.  One  sort  is  for  the  witness 
whom  you  \i\\\  not  attack,  the  other  for  him  whom 
you  will  attack.  You  keep  the  adversary  from  gar- 
bling the  testimony  by  his  partial  questions.  Where 
you  make  the  adverse  witnesses  testify  for  you  and 
instances.  Where  you  reason  them  out  of  their 
errors,  and  an  example.  Putting  one  of  the  adverse 
witnesses  in  conflict  Avith  the  others.  Importance  in 
practice  of  cross-examination  of  witness  whose  tes- 
timony you  make  your  own.  Of  the  witness  whose 
narrative  you  do  not  accept.  Intended  to  make  the 
witness  discredit  himself,  or  testify  to  what  will  be 
contradicted.  Contrast  between  young  and  old 
lawyer,  cross-examining.  Previous  preparation  for 
cross-examining.  Illustrations  showing  importance 
of  premeditation  and  antici'pation.  Two  instances 
where  witnesses  were  detected  in  palpable  perjury. 
An  associate,  quietly  listening,  will  often  detect 
what  escapes  the  questioner.  The  famous  cross-ex- 
aminations of  Majocchi  and  Demont.  Reckless 
witnesses,  occasionally  pushed  forward  by  popular- 
ity of  the  wrong  side,  to  be  thoroughly  sifted.  Rar- 
ity of  such  triumphant  cross-examinations  as  those 
of  Majocchi  and  Demont,  .....  259 


CHAPTER  V. 

CROSS-EXAMINATION — {continued). 

The  three  leading  principles  of  cross-examination  re- 
stated. Mr.  Cox  as  to  the  savage  and  sniili/ig  style, 
of  cross-examining.  The  first  object  of  cross-ex- 
amining is  to  weaken  or  destroy  the  force  of  the 
witness's  testimony  for  the  other  side;  how  it  is  to 
be  a'.tained  (Mr.  Cox). — Cross-examiner  going  too 


CONTENTS.  xix 

PAGH 

far,  and  instan:e  from  Choate's  practice.  Second 
object  of  cross-examination  is  to  elicit  somethinij  in 
your  favor,  and  liow  (Mr.  Cox). — Third  object  is  to 
discredit  the  witness,  and  liow  (Mr.  Cox). — Excel- 
lent example  of  witness  detected  in  perjury  (Mr. 
Cox). — This  author  gives  too  great  prominence  to 
the  cross-examination,  intended  to  involve  in  self- 
contradiction.  The  known  character  of  the  witness 
all-important  to  the  cross-examiner.  Mr.  Cox  does 
not  mention  it.  David  Paul  Brown's  Golden  Rules 
for  cross-examination  given  in  full.  Excellence  of 
all  the  Golden  Rules.  Importance  of  cross-examin- 
ing always  according  to  the  true  principle.  Pro- 
tection due  from  you  to  your  witness  imder  cross- 
examination.  Instance  from  the  Adventures  of  an 
Attorney  &c.,  where  a  witness  protected  himself  by 
an  objection,  sustained  by  the  court,  .  .  280 


CHAPTER    VI. 

RE-EXAMINATION. — CONCLUSION    OF    THE    CONDUCT    OF    THE 
EVIDENCE. 

In  England,  the  leader  usually  re-examines.  He  who  is 
best  acquainted  with  the  narrative  of  the  witness 
should  generally  re-examine.  The  object  of  examina- 
tion, according  to  Mr.  Cox.  One  purpose  is,  to  pre- 
vent the  adversary's  distorting  the  testimony  of  your 
witness  by  garbling  qviestions.  Illustrations.  Wit- 
ness permitted  by  the  re-examination  to  explain. 
Importance  of  previously  acquired  familiarity  with 
'  the  narrative  of  the  witness.  Instance  of  Web- 
ster's strengthening  his  witness.  jNIr.  Cox  docs  not 
comment  on  the  importance  of  this  previously  ac- 
quired knowledge.    Mr.  Cox  on  the  mude  and  scope 


XX  CONTENTS. 

P*GH 

of  re-cxamia;ilk)a.  Eliciting  important  repetitions 
from  the  witness.  Delicacy  of  re-examination,  ac- 
cording to  Mr.  Cox.  His  mistaken  statement  of 
the  object  of  re-examination.  His  assumption  that 
the  examiner  should  always  suppress  unfavorable 
truth.  Ordering  witnesses  out  of  court.  Good  ad- 
vice of  Mr.  Cox  as  to  objections  to  questions.  The 
examiner  should  not  busy  himself  too  much  Avith 
looking  for  objections.  When  and  how  an  objec- 
tion should  be  iirged.  Pleasantness  of  manner  in 
examiner  inculcated.  Protection  due  from  the  court 
to  witnesses  under  examination.  Brave  appeal  to 
the  English  judges,  by  the  author  of  Adventures  of 
an  Attorney  &c.,  to  protect  witnesses.  The  judge 
who  helps  a  favorite  outrage  a  witness.  Providing 
new  evidence  during  a  trial.  Examination  by  com- 
mission. David  Paul  Brown  as  to  importance  of 
examination.  Review  of  the  objects  of  adducing  evi- 
dence. Patience  and  good-humor.  Excitement  of 
a  trial,  and  necessary  coolness  of  the  lawyer  en- 
gaged. Pre-apprehension  of  the  case  not  to  be  too 
slavishly  relied  on,  ......  309 


CHAPTER      VII. 

NOTE-TAKING. 

English  superiority  in  the  matter  of  note-taking  during 
the  trial.  Advice  of  Mr.  Cox.  The  notes  should 
be  taken  by  a  counsel  who  does  not  examine.  Notes 
to  be  taken  of  the  evidence,  and  of  everything  else 

,  important.  Great  aid  of  careful  notes.  Mastery  of 
details  called  for  in  everything.  Defects  of  mem- 
ory. The  inferior  of  two  lawyers  had  the  ([uicker 
apprehension.       Habit    of    Choate,   as    detailed    b/ 


CONTENTS.  xxi 

PACK 

Mr.  Parker.  Notes  of  tlie  evidence  most  important. 
Choatc's  custoni  of  reviewing  and  digesting  his 
notes,  every  night  of  the  trial.  Growing  importance 
of  phonography.  Great  things  can,  however,  be 
done  in  long  liand,  ......  328 


CHAPTER    VIII. 

THE    ARGUMENT. 

When  argument  had  better  be  dispensed  with,  and  when 
it  should  be  made.  Forensic  argument  not  to  be 
overrated.  Sway  of  the  ancient  orators.  Growing 
dominance  of  law.  The  excellence  of  tlie  common 
law  in  its  encouragement  to  contend  for  the  right. 
Mr.  Cox's  advice  as  to  introducing  flights  of  oratory, 
and  being  practical.  True  idea  of  a  fit  argument 
You  should  yield,  where  the  right  is  palpabh 
against  you.  The  great  majority  of  cases  seem 
doubtful  and  should  be  argued.  Right  to  begin 
and  close  the  argument.  Blunder  of  sacrificing  evi- 
dence for  the  last  word.  Making  the  argument  after 
the  evidence  better  than  making  it  before.  Law 
and  fact  again.  English  custom  of  colloquy  be- 
tween the  judges  and  counsel  argviing  commended. 
You  should  sound  the  judge.  Arguing  to  the  court. 
Growing  importance  of  attending  to  facts  and  de- 
tails. Burr's  oratory.  Shortness  of  Phocion's 
speeches.  The  juiy  to  be  made  to  see  the  effect  of 
the  whf  le  of  the  evidence.  Purpose  of  the  speech  is 
to  sho\s  that  the  other  side  has  failed  to  make  out  a 
case,  or  that  yours  outweighs.  Mr.  Cox's  advice 
against  nice  distinctions  and  refined  arguments. 
You  should  strike  the  balance  between  tlie  two  sides. 
Argument    should    be    exliaustivc,    witlioul     being 


xxii  CONTENTS. 


wearisome.  Sometimes  necessarily  lonj^.  Subject 
of  elocution  foreign  to  this  work.  Reference  of  the 
student  to  Whateley  and  Bautain.  Great  modern 
lawyers  convince  the  understanding.  Good  speak- 
ing comes  of  due  attention  to  the  case.  Occasional 
calls  for  great  eloquence.  No  good  case  should  be 
lost.  Picture  of  the  reign  of  justice  and  law  in  the 
King's  Bench.  Honesty  required  in  the  advocate. 
Accurate  insight  coupled  with  perfect  honesty  a 
power  irresistible,  337 


CHAPTER  IX. 

NEW    TRIAL     AND     APPEAL. 

Instructions  of  the  court  to  be  noted.  Motion  in  arrest 
almost  disappearing  from  the  civil  practice!  New 
trial  to  be  moved  for  advisedly.  Sometimes  when 
trying,  your  greatest  concern  is  to  secure  a  sure 
ground  of  new  trial.  Your  notes  contain  the 
grovmds.  Praying  certain  instructions,  or  requiring 
written  charge.  Not  intended  to  digest  the  various 
grounds  of  new  trial.  Reference  to  one  of  the  chap- 
ters on  Plan.  The  authentication  of  the  grounds 
should  be  secured  as  soon  as  possible.  No  parallel 
to  new  trial  in  warfare.  Admirable  spirit  of  the 
lawyer  who  will  not  submit  to  the  loss  of  a  good 
case.  Bill  of  exceptions.  Summary.  Lawyers 
should  not  submit  to  bad  rulings  and  verdicts. 
Proper  control  of  yourself  during  trial,  and  of  a 
iudge  favoring  your  case  to  be  exercised.  All  good 
points  to  be  taken.  A  young  lawyer  first  makes 
his  mark  by  liavi ng  a  judge  reversed,  .  .         .   354 


CONTENTS.  xxlli 

PACK 

CHAPTER  X. 

VICTORY     AND     DEFEAT. 

Whatever  remains  after  victory  to  be  done,  should  be 
done  energclically.  Instance  where  a  plaintifl's 
lawyer  neglected  to  collect  a  judgment.  Counsel 
submission,  if  you  are  on  the  side  of  inevitable  loss,    360 

FINAL   CHAPTER. 

Character  of  the  successful  lawyer  compared  with 
the  law-author,  as  the  successful  farmer  with  the 
agricultural  chemist.  The  lawyer  has  points  of  like- 
ness to  the  general.  Marmont's  analysis  of  the 
general,  in  which  firmness  predominates  over  intel- 
ligence. Genius  of  the  lawyer  and  general  practical 
or  active,  while  that  of  the  law-author  is  contempla- 
tive. The  lawyer's  and  judge's  command  of  legal 
principles  of  common  application.  Practical  wis- 
dom in  the  law  a  necessary  element  of  the  lawyer'3 
composition.  A  head  for  facts  and  details  still  more 
important.  Recapitulation  of  the  two  intellectual 
elements.  Insight,  or  vision  of  the  truth,  the  root  of 
these  two  intellectual  elements.  Example  given  by 
Mr,  Bishop,  where  a  case,  apparently  hopeless,  was 
won,  by  the  application  of  a  hackne)'ed  legal  prin- 
ciple. Acumen  exhibited  as  much  in  evidence,  as  in 
law.  Singular  instance,  where  the  point  was  shown 
by  a  layman,  after  it  had  been  overlooked  by  the 
counsel  and  the  court.  Transcendent  importance 
of  seeing  things  right.  Great  acumen  with  a  pre- 
ponderant force  of  will  exalts  spontaneously  to 
command.  The  moral  element.  Hamlet  deficient 
in  the  moral  element,  and  therefore  deficient  in  ac- 


xxiv  CONTENTS. 

tion.  The  law}cr  is,  pre-eminently,  a  man  of  action. 
Macbeth  and  Hamlet  contrasted.  Themistocles  per- 
fect in  the  proper  union  of  insight  with  force  of 
will.  The  necessary  courage  is  but  self-possession. 
Neither  resolve  nor  anger  can  serve  for  self-posses- 
sion. The  lawyer's  avoidance  of  questions  that  he 
has  not  vime  to  investigate.  He  does  not  attempt 
impossibilities.  Contrasted  with  the  petifogger. 
Summary  of  the  hard  things  the  lawyer  must  do. 
Conclusion, ,.         .        .  363 


CONDUCT  OF  LITIGATION. 


GENERAL      DIVISIONS. 

In  this  book  the  word  Litigation  is  used  in  its 
widest  sense.  Whether  civil  rights  be  in  question 
upon  an  issue  of  fact,  or  a  bill  in  equity  is  heard  to 
settle  intricate  accounts  or  delicate  questions  of  law, 
or  whether  the  State  be  proceeding  on  an  accusation 
of  crime,  such  and  every  other  conceivable  forensic 
controversy  are  classed  herein  under  this  word 
Litigation. 

And  as  there  is  an  art  of  skillfully  choosing  and 
carrying  on  these  controversies,  this  book,  which 
essays  to  teach  that  art  by  setting  forth  and  illustrat- 
ing the  principles  of  the  right  selection,  preparation 
and  management  of  law-cases,  is  called  Conduct  of 
Litigation. 

Litigation  is  akin  to  warfare  and  games  of  skill 
wherein  general  success  is  the  result  of  obedience  to 
certain  fixed  and  easily  discovered  principles.  It  can 
not  be  claimed  that  the  event  of  any  given  case  can  be 


2  CONDUCT  OF  LI  TIG  A  TION. 

calculated  with  exactness,  for  litigation  even  when 
best  understood  is  not  a  science  any  more  than 
warfare  ;  but  like  warfare  it  is  an  art  wherein  accident 
and  fortune  are  often  of  much  avail.  Litigation  has 
in  it  no  such  certainty  as  the  game  of  chess.  It  the 
rather  resembles  the  game  of  whist,  in  which  some- 
times the  luck  of  the  tryo  will,  on  a  particular  hand, 
vanquish  the  skill  of  the  veteran.  So  in  war,  the 
elements  of  nature,  and  occurrences  and  contin- 
gencies which  can  not  be  anticipated  by  the  wisest, 
often  fight  for  the  untrained  soldier,  and  smite  with 
ruin  the  confidence  and  superiority  of  military^ 
genius.  Still  there  are  superior  whist-players  and 
able  generals  who  are  accustomed  to  conquer  all 
adversaries.  There  are,  too,  good  lawyers,  succeed- 
ing so  frequently,  and  often  so  surprisingly,  that  the 
undiscerning  multitude  almost  believe  them  capable 
at  will  either  of  creating  resistless  combinations  or 
of  changing  the  laws  of  belief  to  save  bad  cases. 
The  good  player  makes  every  play  according  to 
the  proper  lule  of  the  game  ;  the  good  general 
directs  every  movement  by  the  true  manual  of  the 
art  of  war;  and  so  the  successful  lawyer  chooses  his 
cases  by  principle,  and  prepares  and  manages  them 
by  principle. 

If  we  contemplate  litigation  closely,  we  see  that 
it  is  more  like  warfare  than  it  is  like  a  game.  When 
you  sit  down  to  play  at  whist,  chance  and  not  fore- 


GENERAL     DIVISIONS.  3 

cast  ordains  your  hand  for  you,  while  in  chess  and 
other  games  of  skill  and  no  hazard,  both  players 
usually  start  with  equal  chances  save  that  one  has 
the  first  move.  There  can  be  no  plan  of  playing 
made  before  the  game  begins,  no  marshalling  nor 
combination  of  forces  and  asfencies  before  the  en- 
counter.  On  the  contrary,  a  battle  or  a  trial  can  not 
occur  so  suddenly  but  that  there  has  been  something 
and  very  often  much  foreseen  and  provided  for,  and, 
if  ability  is  matched  against  mediocrity  and  supine- 
ness,  generally  the  strategy  in  war  and  the  prepara- 
tion in  litigation  of  the  former  have  decided  the 
event  before  even  the  battle  or  trial  begins.  The 
conduct  of  a  trial  or  hearing  does  resemble  the 
playing  of  a  game,  but  there  is  no  parallel  in  the 
game  to  that  foreseeing  preparation  which  the 
lawyer,  moving  or  defending,  may  give  his  case.  In 
this  particular  of  intelligent  provision  for  the  en- 
counter, litigation  resembles  warfare  more  than  it 
does  any  other  contest  and  controversy. 

The  operations  of  war  ending  with  a  battle  are 
of  two  sorts :  hrst,  those  which  precede  and  antici- 
pate the  battle ;  second,  the  management  of  the 
battle  itself.  The  art  teaching  the  combinations  and 
opeiations  preparatoiy  for  battle  is  called  Strategy, 
and  the  art  which  fights  a  battle  aright  is  named 
Tactics.     The  verbal  definition  of  strategy  is  manoeu- 


4  CONDUCT    OF    LITIGATION. 

vering  in  the  absence  of  the  enemy,  and  the  verbal 
definition  of  tactics  is  manoeuvering  in  his  presence. 
Strategy  marshals  the  forces  and  directs  the  move- 
ments to  a  certain  point  where  it  seeks  to  surprise 
and  ovenvheim  the  enemy.  It  is  conceded  by 
military  writers,  that  if  all  other  things  between  two 
opposing  armies  are  equal,  that  one  will  generally 
win  which  is  led  by  the  superior  strategy.  A  battle 
is  more  often  decided  by  that  which  has  been  done 
or  left  undone  beforehand,  than  by  what  is  done  or 
left  undone  on  the  field.  If  good  strategy  has  stolen 
a  march  upon  bad  strategy  and  massed  on  the 
decisive  point  superior  numbers,  even  faultless 
tactics  come  too  late  to  rescue  the  lagging  general 
from  preordained  defeat.  Our  corresponding  word 
in  the  vocabulary  of  litigation  to  strategy  is  Prepara- 
tion, but  we  have  none  that  corresponds  to  tactics. 
And  the  word  preparation  is  rather  of  colloquial 
than  technical  use. 

To  understand  the  art  of  conducting  litigation 
we  need  both  distinctions.  There  must  be  prepara- 
tion proper  of  the  case  before  the  trial,  and  then  the 
trial  itself  must  be  rightly  conducted  from  tlic  open- 
ing to  the  last  attention  needed  to  the  instructions 
of  the  court. 

Our  subject  then  admits  of  two  easy  and  natural 
divisions,   analogous    to    those   two   of  warfare  just 


GENERAL     DIVISIONS.  5 

explained.  The  first  we  call  Conduct  out  oi' 
Court,  or  Preparation,  and  this  will  be  the  sub- 
ject of  Book  I,  The  other  we  term  Conduct 
IN  Court,  and  we  are  half  inclined  to  name  it 
Tactics,  from  the  nomenclature  of  warfare ;  and 
this  latter  will  be  the  subject  of  Book  11.  Wc 
will  here  remark  that  the  chapter  on  New  Trial, 
and  that  on  Victory  and  Defeat  do  not  in  the 
strictest  logical  classification  belong  where  they 
now  are,  but  as  they  are  so  short  and  contain 
nothing  but  what  immediately  grows  out  of  the 
conduct  of  a  case  in  court,  we  have,  we  think, 
rightly  included  them  in  Book   II. 

There  is  a  natural  division  of  the  subject  of  this 
treatise,  preceding  in  the  true  order  the  two  divi- 
sions that  we  have  made  ;  and  this  omitted  and  prior 
one  we  might  entitle  Consideration  of  an  Offered 
Case.  And  it  has  a  correspondence  in  warfare,  lor 
the  commander  must  sit  in  judgment  upon  a  pro- 
jected campaign.  But  as  there  is  so  little  to  say  on 
this  division,  we  have  treated  it  as  belonging  to 
Book  I.  And  the  counterpart  of  warfare,  whic!] 
we  have  just  mentioned,  is  treated  by  military  writers 
under  Strategy. 

Litigation  must  not  be  too  closely  compared  to 
warfare.  Our  subject  can  only  be  illustrated  at 
times   fi'om    that    art.       But    as    both    warfare    ar 


6  CONDUCT    OF    LITIGATION. 

litigation  concur  in  the  particulars  already  mentioned, 
to  wit :  that  there  should  be  preparation  of  superior 
combinations  before  the  decisive  encounter,  and 
that  such  encounter  should  be  skillfully  conducted, 
and  further,  that  the  first  is  of  more  importance  and 
influence  than  the  second,  the  attention  of  the 
student  is  directed  to  those  works  of  military  writers 
wliich  set  forth  the  principles  of  warfare  scientifically 
and  compendiously.  Jomini's  "  Art  of  War,"  and 
Marmont's  "  Spirit  of  Military  Institutions,"  will  be 
found  readable  in  the  American  translations,  well 
distinguishing  strategy  and  tactics,  and  accurately 
explaining  the  essential  principles  of  each. 

Under  the  head  of  Conduct  out  of  Court, — the 
subject  of  Book  I. — will  be  told  every  thing  necessary 
to  be  done  by  the  lawyer  in  his  case  before  trial. 
And  it  is  our  anxious  desire  to  reveal  clearly  the 
transcendent  importance  of  this  proper  preparation. 
Here  is  the  great  field  and  province  for  the  peculiar 
genius  and  the  superhuman  toil  of  the  lawyer.  It  is 
hardly  exaggeration  to  say  that  ninety-five  per  cent, 
of  average  success  in  the  practice  of  the  law  is  in  the 
right  preparation  of  cases. 

Under  the  other  head, — Conduct  in  Court,  the 
subject  of  Book  IL, — will  be  reviewed  every  thing 
necessary  during  the  trial  or  hearing.  This  is  far 
simpler  and  less  difficult  than  the  other  out  of  which 


GENERAL     DIVISIONS.  7 

it  grows,  and  from  which  it  is  mostly  directed  and 
shaped.  The  man  who  ascribes  a  controlling  influ- 
ence in  the  conduct  of  litigation  to  mere  gifts  of 
utterance  and  eloquence  has  never  attentively  ob- 
served and  studied  forensic  controversy.  Sometimes 
they  do,  as  a  sudden  flood  sweep  away  all  op- 
position, but,  in  the  main,  superior  combinations 
will  carry  court  or  juiy,  though  opposed  with  the 
eloquence  of  Demosthenes. 

As  the  subject  is  properly  independent, we  have 
added  after  the  end  of  Book  II.  a  chapter  on  the 
Character  of  the  Successful  Lawyer. 


BOOK   I. 

CONDUCT  OUT  OF  COURT. 

CHAPTER     I. 

INTRODUCTORY. 

The  report  of  a  case  adjudged  by  a  court  of 
error  only  shows  what  were  the  questions  made  bv 
the  record  and  how  those  questions  were  disposed 
of;  and  the  same  may  be  asserted  in  the  main  as 
to  the  reports  of  cases  tried  at  nisi  prius.  But  it  is 
our  object  to  go  behind  trials  and  arguments  and 
discuss  that  which  rarely  appears  in  the  reports 
touching  any  case :  that  is,  how  the  parties  come  to 
the  issues  reported.  The  standard  authors  draw  from 
the  reports  certain  materials  which  they  discuss, 
arrange,  and  digest,  and  from  which  they  present  the 
law  with  more  or  less  of  ability.  The  subject  of 
judges  and  law  authors  is  the  law  itself  Our  subject 
is  the  practice  of  the  law.  Neither  the  ablest  judge 
nor  the  most  renowned  law-writer  has  always  been 
a  good  lawyer,  that  is,  a  successful  practitioner.  All 
of  us  have  noticed  at  the  bar  that  superior  learning 


10  CONDUCT    OF    LIT!  CATION. 

and  understanding  of  the  law  are  sometimes  over- 
matched by  superior  ability  to  practice  law.  Now 
this  address  in  practice,  which  often  wins  against 
greater  knowledge  of  the  statutes,  reports,  and 
books,  is  our  subject.  There  can  be,  it  is  true,  no 
able  conduct  of  an  intricate  case  without  a  compre- 
hensive and  sound  knowledge  of  the  law,  but  this 
knowledge,  it  is  seen,  is  not  of  itself  sufficient. 

The  able  practitioner,  unlike  the  judge  and  law 
writer  who  debate  legal  questions  already  presented, 
spends  his  time  in  investigating  the  particulars  of 
his  case,  so  as  to  select,  as  it  were,  what  issues  and 
questions  he  will  present.  If  not  incessantly 
watched  by  an  adversary  as  waiy  and  industrious 
as  himself,  he  w^ill  often  add  to  his  own  side  a 
strength  which  it  did  not  have  at  first,  and  cut  off 
the  other  side  from  many  of  its  advantages.  He 
will  dexterously  lead  the  other  party  away  from  un 
assailable  positions,  fortified  with  the  authority  of  all 
of  the  judges  and  authors,  to  stand  on  others  which 
they  as  unanimously  condemn,  or  he  will  maneuver 
his  adversary  out  of  superiority  of  evidence,  or  he 
^vill  win  by  using  some  other  lawful  move. 

The  following  passage  from  Mr.  Bishop  is  per- 
tinent here,  and  well  describes  the  lawyer : 

"  There  is  a  certain  degree  of  versatility  of  talent 
necessary   to    constitute    the    consummate    lawyer. 


INTRODUCTORY.  ii 

When  one  is  approached  by  a  client  asking  for 
advice,  he  should  be  able  to  cast  aside  all  private 
interests,  both  his  own  and  those  of  his  client,  and 
sit  upon  the  question  as  would  an  impartial  judge. 
But,  when  this  work  is  accomplished,  and  the  case  is 
made  up  for  trial,  then  the  true  lawyer  ceases  to  be 
impartial ;  he  feels,  he  acts,  he  does  everything  in  the 
place  of  his  client,  whose  cause  is  his  cause,  and 
whose  interests  are  his  interests.  Not,  indeed,  does 
he  do  what  is  dishonest  or  dishonorable,  for  such  a 
thing  the  client  ought  not  himself  to  do.  But,  be- 
yond this,  and  within  the  proper  and  recognized 
limits,  his  interests  and  his  client's  being  merged,  he, 
like  the  client,  ceases  to  be  impartial." ' 

The  lawyer  is  neither  judge  nor  law-author, 
though  he  owes  much  to  their  labors.  He  must 
know  the  law ;  but  to  be  a  successful  lawyer  he  must 
know  something  else.  He  must  be  master  of  the 
art  of  conducting  litigation.  He  passes  his  life  in 
following  objects  different  from  those  of  the  judge 
or  author.  The  judge  is  constantly  asking  himself: 
Of  these  two  contending  parties  which  has  the 
right .?  and  he  generally  decides  according  to  some 
rule  of  lav\''  which  he  finds  applicable.  The  task  of 
the  author  is  similar.  He,  also,  seeks  after  the  law. 
Out  of  the  many  points  decided  by  the  judges  he 
'  Bishop,  First  Book,  §  476. 


12  CONDUCT    OF    LITIGATION. 

seeks  to  educe  the  law  as  a  system.  But  the  lawyer 
is  in  search  of  something  else.  Fie  is  partialized  to 
one  side,  and  is  continually  asking  himself:  How  can 
I,  conforming  to  the  law  and  those  principles  which 
govern  human  action  procure  the  judge  to  decide, 
as  the  jury  to  fmd,  for  my  client }  He  will  need, 
therefore,  for  his  training,  a  very  different  book  from 
that  which  will  be  a  good  manual  for  the  judge  or 
author. 

Here  let  us  contemplate  a  little  the  office  of  a 
lawyer.  And  the  first  thing  that  strikes  us  is,  that 
he  is  always  the  deputy  of  another.  Flis  industry  in 
his  chambers,  poring  over  records  and  documents, 
and  sifting  witnesses,  his  long  strain  of  attention,  con- 
centrated on  the  opening  of  the  case  and  the  exam- 
ination of  the  witnesses  in  court,  and  his  zeal  and 
sometimes  eloquence  in  argument,  are  all  for  some 
one  else  and  not  for  himself  He  labors  and  argues 
for  his  client.  The  client  can  manage  his  own  cause, 
he  can  prepare  it,  conduct  it  in  court  and  argue  it  if 
he  choose.  This  is  a  right  which  can  not  be  taken 
away  from  him,  and  it  is  guarantied  to  him  by  con- 
stitutions. But  as  it  requires  much  study  and  prepa- 
ration to  fit  a  man  for  managing  causes,  the  litigant 
usually  engages  the  services  of  one  who  has  made 
the  law  his  profession.  This  has  often  been  said  be- 
fore, but  it  is  repeated  to  draw  special  attention  to  the 


INTRODUCTORY.  13 

representative  character  of  the  lawyer.  He  is  to 
stand  in  the  shoes  of  the  cHent,  and  he  is,  therefore, 
as  Mr.  Bishop  has  just  said,  not  impartial.  He  is 
under  the  biasing  influence  of  his  desire  to  win. 
His  education  has  taught  him  to  avoid  the  sordid 
and  little  selfishness  that  will  be  seen  in  many  a 
client,  yet  he  can  not  stand  erect  and  impartial  as 
the  judge.  The  law-author  is  under  no  influence 
attracting  him  to  take  some  particular  side  of  every 
question  which  he  encounters.  But  the  lawyer  is 
identified  with  his  case.  Flis  cases,  that  is,  his  side 
of  his  cases,  are  his  idols.  His  profession  has  stimu- 
lated his  zeal  and  his  love  for  his  side,  and  he  will 
often  be  found  far  more  earnest  and  aroused  than  the 
man  whose  agent  he  is. 

And  this  is  the  process  of  nature,  that  every 
precious  interest  of  the  world  be  confided  for  de- 
velopment, protection,  or  defense,  to  a  loving,  par- 
tial and  devoted  agency.  The  wife  is  intrusted  to 
the  self-sacrificing  care  of  the  husband,  children  t ) 
the  devoted  w^atchfulncss  of  parents,  and  the  very 
life  of  the  country  is  sometimes  confided  in  the 
hands  of  the  general  and  the  army,  all  of  whom  are 
expected,  if  need  be,  to  die  cheerfully  in  the  cause. 
No  labor  can  be  well  done  unless  it  be  a  labor  of 
love,  and  the  heart  of  the  worker  must  be  in  his 
work:     All  of  these  guardians  are  spurred  on  by  the 


14  CONDUCT    OF    LITIGATION. 

approval  of  the  world,  to  do  their  best  for  thcii 
various  charges.  The  affection  of  the  parent  and 
wife  will  often  gain  for  their  loved  ones  that  which 
they  should  not  have.  The  general  will  often 
achieve  for  his  country  that  which  rightfully  belongs 
to  another  nation,  and  thus  the  client  will  often 
obtain  for  himself  the  rights  of  others,  or  what  is 
the  same  thing,  his  lawyer  will  do  it  for  him.  Good 
and  evil  are  thus  mixea  together,  but  the  good  far 
exceeds  the  evil.  Our  hearts  love  the  faithful 
guardian,  and  we  can  not  blame  him  for  succeeding 
where  he  should  not.  Who  expects  the  parent  to 
turn  against  the  child,  for  all  of  the  many  iterations 
of  that  Roman  father  who  sat  in  judgment  on  his 
son  }  The  lawyer  is  expected  to  stand  up  as  man- 
fully for  his  client  as  the  general  does  for  his  country, 
and  though  failure  may  overtake  both,  the  harder 
they  strive  the  more  they  are  applauded.  Sometimes 
a  stubbornly  contested  defeat  becomes  almost  as 
famous  as  a  victory. 

This  is  only  the  beginning  of  the  matter.  There 
must  be  love,  identity  in  interest,  self-sun ender  to 
the  cause,  in  the  parent,  the  general,  the  advocate. 
But  society  wishes  the  right,  and  not  a  particular 
lawyer,  to  triumph,  and  she  mates  against  him 
the  same  zeal,  fidelity  and  love  for  the  opposing 
cause.     And  she  selects  to  sit  as  spectators  of  the 


INTRODUCTORY.  15 

contest,  educated  and  trained  judges,  and  impartial 
juries,  who  are  to  hear  all  that  the  interest  and 
passion  of  each  disputant  can  say.  There  is  to  be 
free  speech  and  discussion.  More  than  this,  the 
lawyer  is  free  to  take  any  case  ;  he  is  free  in  the 
preparation  and  conduct.  And  the  law  is  as  con- 
fident as  ever  Thomas  Jefferson  was,  that  the  right 
will  prevail  where  reason  is  left  free  to  combat  error. 
The  parties,  or  their  counsel  representing  them,  are 
the  favored  agents  of  the  law  for  this  end.  The  law 
will  have  them  all  unhampered  in  their  search  after 
the  right.  Those  who  find  are  rewarded,  and  those 
who  do  not,  are  applauded  for  their  search. 

These  considerations  elevate  our  subject.  Like 
the  origin  and  subsequent  power  of  juries,  the  free 
resort  to  the  courts,  and  the  unrestrained  preparation 
and  untrammeled  discussion  are  all  but  part  and 
parcel  of  that  freedom  which  our  forefathers  brought 
from  England ;  and  the  office  of  the  judge  and  the 
sacredness  of  his  judgment  belong  to  that  majesty  of 
the  law  which  our  same  forefathers  put  above  even 
their  liberties  in  their  love. 

The  profession,  that  is,  the  existence  of  a  large 
body  of  men,  who  make  the  law  their  study  and  its 
practice  their  livelihood,  with  the  experience  of  the 
judge,  are  devised  to  hold  the  sca^-^s  of  justice  even. 
An  inferior  lawyer  with  the  law   for  him,  before  a 


i6  CONDUCT    OF    LITIGATION 

good  judge,  is  an  overmatch  for  the  leader  of  the 
circuit  doing  his  best  on  the  other  side. 

We  have  now  surveyed  with  some  attention  the 
constitution  of  courts  of  justice,  and  the  duties  and 
end  of  lawyers.  To  sum  up  all  in  one  word,  as  to 
the  lawyer,  whatever  the  jury  may  fmd  or  the  judge 
rule,  he  is  to  do  all  and  say  all  that  he  can  rightfully 
for  his  client.  And,  having  explained  that  the 
subject  which  we  have  chosen  can  not  properly  have 
that  treatment,  which  is  given  by  authors  to  legal 
themes,  we  must  now,  as  we  begin,  presuppose 
something  for  our  reader. 

In  the  first  place,  we  must  suppose  that  he  has 
with  labor  and  attentive  care  familiarized  himself 
with  the  most  of  that  law  which  decides  cither 
questions  of  right  or  practice  arising  in  the  average 
daily  run  of  business.  We  do  not  drive  him  away 
by  telling  him  that  he  must  have  the  knowledge  of  a 
Kent,  or  a  Story,  or  a  Bishop.  We  only  mean  that 
we  suppose  him  to  have  spent  an  industrious 
novitiate  of  a  few  years  in  legal  studies,  and  that,  if 
he  does  not  know  the  law  on  any  ordinary  question 
presented  to  him,  he  is  beginning  to  know  where 
to  look  to  fmd  it,  and  to  know  it  when  he  docs 
fmd  it. 

And  we  must  also  suppose  for  him  a  tolerable 
aptitude    for    studying    and     understanding     facts 


INTRODUCTORY.  17 

coupled  with  powers  of  logic  and-  communication 
sufficient  to  impart  and  enforce  his  views.  For  most 
of  the  controversies  in  courts  are  over  the  question, 
What  is  the  truth  of  the  facts  here  ?  When  that  is 
brought  out  by  the  analysis  and  presentation  of  the 
lawyer,  there  is  little  more  left  for  either  court  or 
jury.  What  does  this  instrument,  or  what  do  these 
many  documents  read  together,  mean  ?  What  do  all 
these  witnesses  taken  together  say  7  Such  questions 
are  interminably  the  problems  of  the  lawyer.  They 
begin  when  the  case  is  first  offered  him  ;  they,  01 
many  shifting  successors  of  like  nature,  travel  with 
him  to  the  end.  This  analysis  is  precedent  to  any 
discussion  at  all,  and  it  presents  at  last  the  contro- 
versy. What  the  details  mean  must  first  be  found 
out  before  the  grounds  of  difference  can  be  dis- 
covered. This  faculty  of  acquiring  the  facts  is  that 
which  we  often  hear  lauded  under  the  name  of 
common  sense.  Anybody  who  understands  v/hat  he 
sees,  hears  and  reads,  who  understands  the  people 
with  whom  he  deals,  and  sees  the  springs  and 
motives  of  ordinary  human  action  and  conduct,  has 
the  faculty. 

Having  premised,  as  above  set  forth,  for  our 
reader,  we  \y\\\  now  proceed  to  the  exposition  of  the 
more  special  subject  of  this  chapter.  We  must 
brief!}''   show    the  elements  of  litigation,  and    give 


1 8  CONDUCT    OF    LITIGATION. 

some  faint  idea  too,  of  how  the  lawyer  deals  with 
them  in  his  cases. 

All  litigation,  when  attentively  considered,  will 
be  found  to  be  controversy  over  either  (i)  facts  dis- 
puted, or  (2)  law  disputed,  or  both.  And  our  system 
erects  separate  tribunals  to  try  each  kind  of  dispute. 

The  judge  decides  all  disputes  as  to  law,  and  in 
giving  judgment  he  is  guided  by  the  statute  book 
and  authority,  and  when  they  fail,  as  they  often  do, 
by  the  analogy  of  the  law,  or,  in  the  words  of  Lord 
Coke,  "  The  artificial  reason  and  judgment  of  law, 
which  law  is  an  art  which  requires  long  study  and 
experience  before  that  a  man  can  attain  to  the  cog- 
nizance of  it."  Where  the  statute-book  and  accepted 
authority  fail,  is  the  arena  for  law  arguments.  Many 
cases,  involving  great  and  precious  interests,  turn  on 
questions  which  must  be  decided  according  to  this 
artificial  reason." 

Disputed  facts  are  usually  tried  by  a  jury  of  lay- 
men, and  their  guide  is  experience  and  logic,  which 
will  be  found  the  great  contributors  to  the  law  of 
evidence.  These  laymen  are  not  left  to  their  own 
unaided  faculties.  The  manual  of  evidence  is  full  of 
counsel  for  them,  out  of  which  the  court  will  often 
so  abundantly  instruct  them  that  he  will  seem  to 
direct  their  finding.  Juries  exercise  the  same 
faculties  in  passing  upon  testimony  that  other  people 


INTRODUCTORY. 


19 


do,  whether  lay  or  professional.  Were. the  system  of 
jury  trial  swept  away,  whatever  successor  tried  facts, 
would  try  them  just  as  juries  do  now ;  the  law  of 
evidence  would  remain,  and  the  science  of  practice 
would  be  the  same.  A  judge  often  by  command- 
ment or  permission  of  law  tries  facts,  and  he  then 
weighs  them  as  a  juror  would. 

We  must  begin  now  with  the  distinction  between 
law  and  fact.  And  the  reader  is  supposed  to  under- 
stand it.  It  lies  at  the  threshold  of  practice,  and  can 
not  be  ignored.  Every  case  is  lost  or  won  either  by 
the  decision  of  the  court  or  the  finding  of  the  jury, 
or  sometimes  by  both  together.  And  as  law  is  so 
different  from  fact,  the  province  of  the  judge  so 
different  from  that  of  the  jury,  and  yet  both  judge 
and  jury  are  to  work  together,  neither  the  distinction 
of  the  two  nor  the  union  of  the  two  must  ever  be 
lost  sight  of.  An  adversary  may  say  to  another :  "  I 
do  not  agree  that  the  facts  are  as  you  contend  them 
to  be,  and  this  difference  of  ours  must  be  decided  by 
the  jury.  If  the  jury  believe  as  you  do,  then  I  dis- 
pute the  law  on  which  you  rely  ;  that  is,  I  will  admit 
your  facts,  but  I  say,  that  conceded  to  the  fullest 
they  do  not  in  law  make  out  your  case'  Here,  if 
the  jury  hold  with  him,  that  is  enough,  for  there  is 
no  ground  on  which  the  legal  question  can  be  made, 
and  the  case  alleged  against  him  is  found  not  true. 


20  CONDUCT    OF    LITIGATION: 

If  the  ju;y  do  not  believe  with  him,  and  yet  the 
judge  holds  that  the  facts  they  find  make  no  case, 
then  that  decision  is  enous^h  for  him. 

The  books  also  speak  of  mixed  questions  of  law 
and  fact.  These  are  left  to  the  jury  with  instructions 
from  the  court,  but  it  will  be  seen  that  they  present 
nothing  new.  It  is  enough  for  our  purpose  here  to 
show  the  two  elements.  Each  will  be  amply  con- 
sidered hereafter.  Both  elements  exist  in  every  case. 
That  which  presents  no  controversy  but  a  legal 
question  takes  the  facts  for  granted.  The  facts  are 
not  disputed,  and  are  understood  by  both  parties 
alike ;  and  the  case,  which  presents  no  issue  but  one 
of  fact,  takes  the  law  for  granted — that  is,  both 
parties  understand  the  law  applicable  alike. 

In  litigation  you  either  take  the  initiative  oj 
'^ou  stand  on  the  defensive,  and  your  attack  05, 
defense  must  be  supported  upon  one  or  both  ol 
these  two  elements.  The  aim  of  an  intelligent 
preparation  is  to  secure  for  your  client  a  superior 
advantage  over  his  adversar)''  on  the  law,  or  on  the 
facts,  or  on  both.  If  by  prudent  provision  you  can 
be  stronger  on  the  facts  under  the  law,  you  will  win, 
or  if  your  case  be  in  the  proper  construction  of  the 
law,  which  you  can  show,  it  may  be  by  great  research 
and  exhaustiveness  of  presentation  to  be  for  you, 
again  you  have  the  preponderance.      But  if  you  can 


IN  TROD  UCTOR  V.  21 

present  superior  combinations,  both  of  law  and  fact, 
then  you  arc  doubly  safe.  The  right  preparation  of 
a  case  is  scientific,  and  its  object  is  to  present  for  the 
client  at  the  trial,  on  those  points  of  controversy, 
which  are  cardinal  or  controlling,  the  ascendency  as 
already  explained.  A  little  observance  of  trials  and 
arguments  will  give  the  reader  a  clearer  insight  inLo 
the  subject  than  many  more  pages,  however  plainly 
written  and  filled  it  might  be  to  overflowing,  with 
illustrations.  As  the  student  observes  the  argument 
after  the  evidence  is  all  in,  he  will  often  detect 
for  himself,  the  preponderance  of  the  prevailing 
party,  and  he  will  likewise,  while  hearing  discussion 
of  legal  questions,  begin  to  see  before  the  judge 
delivers  his  opinion,  who  will  win  it  and  how. 
Napoleon's  saying,  that  the  art  of  war  consisted  all 
in  being  the  stronger  on  a  certain  point,  is  accepted 
as  a  maxim.  So  in  litigation,  there  are  turning 
points,  either  of  law  or  fact,  where  superiority  will 
win  for  the  party  who  has  it.  We  care  not  to  go 
very  much  into  detail  here,  for  the  law  of  evidence 
and  attentiveness  to  the  proceedings  of  the  courts, 
will  amply  instruct.  But  there  is  something  more 
to  say,  which  we  think  pertinent. 

A  verdict,  like  a  victory,  has  resulted  from  the 
party's  strength  in  one  or  more  cardinal  particulars 
The   victorious    party    it    may   be,   has,  with   gre; 


22  CONDUCT    OF    LITIGATION. 

secrecy  and  completeness  of  preparation,  provided 
for  iiimself  a  preponderance  of  proof  on  a  material 
point  which  the  other  side  did  not  expect  combated. 
Our  heavy  ships  in  our  last  war  with  England  were 
disguised  superiors  to  their  seeming  equals  of  the 
British  navy,  in  strength.  These  are  instances  where 
secrecy  and  masking  overcome.  But  oftentimes 
preparation  may  be  as  open  and  resistless  as  a  game 
of  chess  against  the  loser  doomed  to  a  mate  in  a 
certain  number  of  moves.  Thus,  in  a  doubtful  case, 
when  one  sees  that  he  can  procure  the  verdict,  he 
may,  if  he  can,  make  a  person  related  to  one  of 
the  court  of  errors  composed  of  three  judges,  a 
party,  and  thus,  if  but  one  judge  of  the  two  qual- 
ified presiding  favor  the  verdict,  it  can  not  be  set 
aside. 

It  must  never  be  forgotten  by  him  who  seeks  an 
ascendency  that  will  give  him  the  victory,  that  the  law 
does  not  at  all  change  the  nature  of  man.  Mr. 
Bishop,  after  reviewing  the  different  sources  from 
which  we  derive  the  criminal  law,  concludes  with 
great  vigor : 

"  Besides  these  authorities,  there  is  another  au- 
thority sometimes  apparently  disregarded,  but  never 
disregarded,  in  fact  —  derided  it  may  be,  but  as 
certainly  bowed  before,  as  the  forest  tree  bows 
before  the  whirlwind — namely,  the  force  of  the  com- 


INTRO  D  UCTOR  Y.  23 

bincd  reason  and  conscience  of  mankind.  No 
judge  ever  did  or  ever  could  stand  long  in  direct 
opposition  to  this  power.  Before  it  bend  the  pre- 
cedents, are  bent  the  statutes,  bends  the  judicial 
judgment,  as  well  as  the  private  opinion  of  the 
incumbent  of  the  bench."' 

And  the  lawyer  finds  juries  too,  feeble  to  resist 
the  same  great  power.  The  letter  of  the  law,  when 
against  right  and  justice,  often  becomes  so  odious 
that  the  jury  conspire  with  the  judge  to  deny  it, 
under  some  pretext  apparently  legal. 

And  the  lawyer  must  know  well  the  average 
views,  sentiments,  and  creeds  of  mankind.  And  he 
must  know,  too,  even  their  erroneous  prejudices,  to 
be  used  as  allies,  or  to  be  avoided  if  need  be,  and 
sometimes,  though  rarely  and  with  desperate  risk,  to 
be  met  and  vanquished. 

Man  is  governed  rather  by  his  feelings  than  his 
reason.  The  frowning  judge  on  the  seat  of  judg- 
ment has  his  weak  likes  and  dislikes.  Lord  Camp- 
bell narrates  of  Lord  Tenterden  :  "  The  bias 
which  chiefly  carried  Abbott's  mind  astray,  when  it 
missed  the  object  to  which  it  was  directed,  was  a 
suspicion  of  fraud.  He  had  a  very  indifferent 
opinion  of  human  nature,  and  at  times  seemed  to 
believe  all  mankind  to  be  rascals.      He  delighted  in 

'  I  Crim   Law,  §  42,  a  (4th  Ed.). 


24  CONDUCT    OF    LITIGATION. 

discovering  what  he  considered  a  fraudulent  con- 
trivance on  the  part  of  the  plaintiff  or  of  the  defend- 
ant, and  in  unraveling  it.  I  have  heard  Scarlett 
jocularly  boast  that  he  got  many  a  verdict  by  hu- 
moring this  propensity,  just  giving  the  hint  very 
remotely  to  the  Chief  Justice,  and  allowing  his 
Lordship  all  the  pleasure  and  the  eclat  of  exposing 
and  reprobating  the  cheat." 

Oftentimes  an  honest  judge  is  too  much  un- 
der the  influence  of  a  particular  lawyer.  Mr. 
YoRKE,  afterwards  Lord  Hardwicke,  was  a  favorite 
of  the  Chancellor,  Lord  Macclesfield. — "  Equity 
business  soon  flowed  in  upon  him,  partly  from  his 
own  merit  and  partly  from  the  favor  of  his  patron, 
testified  in  a  manner  which  gave  mortal  offense  to 
the  seniors  at  the  bar.  Sergeant  Pexgelly  in  par- 
ticular was  so  disgusted  at  frequently  hearing  the 
Chancellor  observe,  'what  Mr.  Yorke  said  has  not 
been  answered,'  that  he  one  day  threw  up  his  brief, 
saying,  in  a  loud  voice  :  '  I  will  no  more  attend  a 
court  where  I  find  Mr.  Yorke  is  not  to  be 
answered.'  Again,  a  lawyer  may  have  a  bewitching 
popularity  with  juries,  or  a  party,  or  a  material  wit- 
ness may  be  under  a  cloud,  and  every  one  be  opposed 
to  him  in  feeling.  There  might  be  thus  instances 
infinite  given  of  such  things  that  influence  juries, 
which  they  are  sworn  not  to   be   influenced  by,  and 


INTRODUCTORY.  25 

making  judges   to  stumble  who  try  to  keep  from 
slipping  as  they  walk. 

The  law  as  written  in  the  text  books,  and  as  re- 
vealed by  the  reports,  is  not  the  same  as  that  admin- 
istered by  judges  and  juries.  The  reports,  over 
which  we  pore,  day  and  night,  have  no  presentations 
of  the  faces,  character,  voices,  dress,  deportment,  and 
evident  bias  one  way  or  the  other,  of  the  parties  and 
witnesses.  The  glance  of  intelligence  of  a  juror  not 
knowing  that  he  is  watched,  the  frown  of  another, 
and  the  smile  of  still  another — all  these  are  missed. 
But  they  are  signs  by  which  the  lawyer  has  been 
guided,  almost  unconsciously  to  himself.  There  is 
no  place  in  the  world  where  the  feelings  have  more 
unconstrained  play  than  in  a  crowded  court-room 
during  an  important  and  exciting  trial.  The  great 
crowd  goes  along  with  everything,  as  well  as  the 
audience  follows  the  play  in  the  theater,  and  though 
the  sheriff  and  bailiffs  keep  the  best  of  order,  that 
whole  throng  of  listeners  perceptibly  manifest  their 
approval  or  disapproval  of  everything  that  is  said  or 
done.  The  bar  feel  this  influence — they  have  brothers 
and  fathers  in  that  company.  The  judge  feels  it,  too, 
and  he  has  an  almost  fraternal  feeling  for  those 
people  out  there  ;  and  the  jury,  why,  they  came  from 
that  multitude ;  and  all  of  them,  judge,  counsel,  wit- 
nesses,  parties,  jury,   and    audience    are   men    and 


26  CONDUCT    OF    LITIGATION. 

women,  and  like  other  men  and  women,  have  their 
weaknesses  and  infirmities,  their  loves  and  hatreds, 
their  vices  and  their  many  virtues,  too.  All  of  them 
live  in  their  feelings,  and  these  impulsive  heady 
feelings  are  ever  running  away  with  their  reasons 
in  unguarded  moments.  And  thus  is  there  a 
different  law  administered  at  nisi  prius,  from  that 
which  is  found  in  Blackstone  and  Story.  And 
this  law  must  be  learned  by  him  who  would  be  a 
successful  lawyer.  He  must  study  these  fountains  of 
human  action  and  conduct.  Especially,  when  he  is 
weighing  the  chances  of  litigation,  must  he  take 
them  all  into  account,  anticipating  and  estimating  as 
well  as  he  can. 

So  much  have  we  set  down  in  this,  our  introduc- 
tory chapter,  to  our  first  book.  In  its  follov/ing 
chapters  we  will  discuss  in  detail  the  different  ele- 
ments of  litigation,  and  the  duties  of  rejecting 
offered  cases  or  of  accepting  and  preparing  them 


A     CASE     OFFERED.  27 


CHAPTER     II. 


A    CASE    OFFERED. 


When  a  client,  meditating  a  resort  to  the  courts 
or  the  defense  of  a  suit  menaced  or  ah'eady  brought 
against  himself,  consults  a  lawyer,  it  is  the  business 
of  the  latter  to  investigate  the  whole  matter 
thoroughly.  Every  particular  of  the  case  must  be 
carefully  looked  into,  with  the  object,  at  first,  of 
merely  mastering  the  details  fully.  Then,  after  the 
counsel  feels  that  he  is  possessed  of  all  the  facts,  he 
will  analyze  them  to  discover  what  is  the  nature  of 
the  case,  and  what  points  of  controversy,  if  any,  are 
presented.  Surely  this  is  the  moral,  if  not  the  legal 
duty,  of  a  lawyer  when  consulted.  The  necessary 
investigation  may  disclose  that  the  case  offered  is 
hopeless.  If  so,  it  is  better  that  the  client  be  made 
to  understand  it  at  once,  and  submit  himself  will- 
ingly to  the  inevitable  command  of  the  law,  than 
that  he  be  fed  with  delusive  hopes,  and  at  the  last 
be  taxed  with  an  enormous  amount  of  fees  and  costs, 
most  oppressive  and  unjust  as  he  cannot  avoid  feel- 
ing when  he  loses  the  matter,  whatever  it  is,  in 
controversy. 


28  CONDUCT    OF    LITIGATION. 

We  must  not  forget,  however,  that  there  are  many 
cases  of  most  ready  analysis.  They  may  turn  upon 
a  single  issue  of  fact  or  of  law,  plain  and  manifest 
to  every  lawyer.  The  words  of  a  statute  may  be 
ambiguous,  and  the  parties  may  differ  as  to  their 
meaning;  or  the  issue  may  be  between  two  wit- 
nesses contradicting  each  other.  All  the  investiga- 
tion in  the  world  will  often  add  no  further  difficulty 
nor  abstruseness  to  these  easy  cases.  The  duty  of 
the  lawyer,  when  consulted  as  to  these,  is,  of  course, 
easy,  and  he  can  decide  at  once  according  to  the 
rules  set  forth  in  this  and  the  next  two  chapters. 
But  we  will  consider  those  cases  of  intricacy  and 
perplexity  of  details  somewhat  at  length,  and  to 
such  we  now,  after  this  brief  digression,  return. 

We  will  besfin  with  the  advice  of  Ouintilian: 
'  Let  us  allow  plenty  of  time  then,  and  a  place  of 
mterview,  free  from  interruption,  to  those  who  shall 
have  occasion  to  consult  us,  and  let  us  earnestly  ex- 
hort them  to  state  every  particular  off-hand,  however 
verbosely  or  however  far  they  may  wish  to  go  back ; 
for  it  is  a  less  inconvenience  to  listen  to  what  is 
superfluous  than  to  be  left  ignorant  of  what  is  essen- 
tial. Frequently,  too,  the  orator  will  fnid  both  the 
evil  and  the  remedy  in  particulars  which  to  the 
client  appeared  to  have  no  weight  on  either  side  of 
the  question.      Nor  should  a  pleader  have  so  much 


A     CASE     OFFERED.  iq 

confidence  in  his  memory  as  to  think   it  too  great 
trouble  to  write  clown  what  he  hears. 

"  Nor  should  he  be  content  with  hearing  only 
once :  the  client  should  be  required  to  repeat  the 
same  things  again  and  again ;  not  only  because 
some  things  might  have  escaped  his  memory  at  the 
first  recital,  especially,  if  he  be,  as  is  often  the  case, 
an  illiterate  person  ;  but  also  that  we  may  see  whether 
he  tells  exactly  the  same  story ;  for  many  state  what 
is  false,  and  as  if  they  were  not  stating  their  case 
but  pleading  it,  address  themselves,  not  as  to  an  ad- 
vocate, but  as  to  a  judge.  We  must  never,  there- 
fore, place  too  much  reliance  on  a  client ;  but  he 
must  be  sifted,  and  cross-examined,  and  obliged  to 
tell  the  truth ;  for,  as  by  physicians,  not  only  ap- 
parent ailments  are  to  be  cured,  but  even  such  as  are 
latent  are  to  be  discovered,  even  though  the  persons 
who  require  to  be  healed  conceal  them,  so  an  advo- 
cate must  look  for  more  than  is  laid  before  him.  , 
.  .  .  The  client  must  be  questioned  sharply  and 
pressed  hard ;  for  by  searching  into  every  particular 
wo  sometimes  discover  truth  wdiere  we  least  ex- 
pected to  find  it. 

"In  a  word,  the  best,  advocate  for  learning  the 
merits  of  a  cause  is  he  that  is  least  credulous ;  for  a 
client  is  often  ready  to  promise  everything;  offering 
a  cloud   of   witnesses  and  sealed   documents,  quite 


30  CONDUCT    OF    LITIGATION. 

ready,  and  averring  that  the  adversary  himself  will 
not  even  offer  opposition  on  certain  points.  If  it  is 
therefore  necessary  to  examine  all  the  writings  re- 
lating to  a  case,  it  is  not  sufficient  to  inspect  them  ; 
they  must  be  read  through  ;  for  very  frequently  they 
are  either,  not  at  all  such  as  they  were  asserted  to  be, 
or  they  contain  less  than  was  stated,  or  they  are 
mixed  with  matters  that  may  injure  the  client's  cause, 
or  they  say  too  much,  and  lose  all  credit  from  ap- 
pearing to  .be  exaggerated.  We  may  often,  too,  find  a 
thread  broken,  or  wax  disturbed,  or  signatures  with- 
out attestation  ;  all  which  points,  unless  we  settle 
them  at  home,  will  embarrass  us  unexpectedly  in  the 
forum :  and  evidence  which  we  are  obliged  to  give 
up  will  damage  a  cause  more  than  it  would  have 
suffered  from  none  having  been  offered."  ' 

This  passage,  both  in  its  exhortation  to  look  with 
a  sceptical  spirit  into  every  detail  of  the  case,  and 
its  warnings  against  the  biased  representations  of  the 
client,  deserves  the  meditation  of  every  lawyer.  If 
the  advice  of  the  celebrated  author  was  wise  in  his 
day,  it  is  more  important  now.  For  as  the  world 
moves  and  society  advances,  there  is  an  increasing 
attention  given  to  particulars.  Everything  debated 
is  looked  at  more  closely.  Trials,  and  arguments, 
and  instructions  of  the  court  increase  slowly,  year  by 
'Institutes,   xii.  8.  7-13.  {Watsons   Trans). 


A     CASE     QFFERllD. 


31 


year,  in  lcn_a^th.  The  investigations  of  the  forum,  in 
common  with  those  of  science,  grow  more  accurate 
and  careful.  And  so  the  directions  given  in  the 
passage  cited,  though  valuable  and  suggestive,  must 
be  greatly  added  to  now. 

After  hearing  the  client  state  his  case,  and  hav- 
ing elicited  from  him  in  the  manner  pointed  out  by 
QuiNTiLiAN,  all  his  knowledge,  both  as  to  the  facts, 
and  as  to  other  accessible  sources  of  information  not 
yet  examined,  the  lawyer  should  not  rest  until  he 
has  searched  diligently  after  this  missing  informa- 
tion. From  his  experience  and  training,  important 
witnesses,  documents,  and  facts  wnll  occur  to  him, 
not  thought  of  by  the  client.  If  it  is  necessary  to 
refer  to  documents,  the  lawyer  should  be  satisfied 
with  nothing  but  the  originals,  or  copies  properly 
authenticated.  Witnesses  should  never  be  examined 
by  an  agent  if  they  can  be  sifted  in  person.  The 
client  should  be  required  to  bring  them  to  some  ap- 
pointed place — if  possible,  the  lawyer  should  confer 
with  every  witness  before  advising  action.  The 
client  will  often  be  found  wofully  mistaken  as  to 
their  testimony.  Besides  the  inability  to  grasp  and 
communicate  their  meaning,  he  has  the  bias  of  his 
interest  and  passion  to  distort  his  conceptions,  and 
he  will  generally  be  inclined  to  overstate  the  testi- 
mony  for  himself.     Very  often,  too,  his   ignorance 


32  CONDUC'I     OF    LITIGATION. 

will  blind  him  to  great  advantages  existing  where 
he  shrinks  from  fancied  peril.  Granting  the  client 
unusual  immunity  from  bias,  and  coolness  and  intel- 
ligence in  a  high  degree,  yet  he  has  not  been  trained 
to  sift  and  probe  testimony,  nor  does  he  know  the 
law.  Facts  immovably  supporting  his  case  may 
exist,  and  he  fail  from  the  lack  of  professional  talent 
to  find  them — or  understanding  some  of  the  testi- 
mony well,  he  may  build  upon  a  seemingly  firm 
foundation  which  will  sink  away  so  soon  as  tested 
by  the  law,  which  he  does  not  understand. 

The  lawyer  has  reasons  most  cogent  for  inspect- 
ing documents  for  himself  and  conferring  with  the 
witnesses  in  person.  If  he  neglect  this  duty  he  will 
never  know  when  some  witness  of  his  ov/n,  or  some 
of  his  written  evidence  "  mixed  with  matters  that 
may  injure  the  client's  cause,"  may  subvert  his  case. 
The  author  remembers  seeing  a  trial  suspended  late 
in  the  afternoon,  the  defendant  closing  with  a  strong 
attack  by  several  respectable  witnesses  upon  the 
character  of  the  plaintiff,  who  had  made  a  witness  of 
himself  to  prove  some  material  matters.  The 
plaintiff's  lawyer  instructed  him  to  come  the  next 
morning  provided  with  witnesses  to  support  his 
character.  He  came  with  a  cloud.  The  first,  after 
showing  clearly  under  his  examination  that  he  was 
well    acquainted    with    the    charactei    in    quesrion, 


A     CASE     OFFERED.  33 

answered  it  was  very  bad  ;  the  next  made  it  worse ; 
and  a  third,  examined  in  desperation,  could  find  no 
sufficient  lang'uao'e  to  describe  the  vileness  of  the 
plaintiff  and  his  delight  in  disbelieving  him  when 
under  oath.  Flere  the  support  of  the  plaintiff  was 
abruptly  stopped.  It  was  difficult  for  the  looker-on 
to  decide  which  was  most  amusing — the  surprise  of 
the  plaintiff's  counsel  or  the  disappointment  of  the 
witnesses  not  examined,  who  manifested  in  their 
countenances  great  eagerness  to  finish  worthily  what 
had  been  so  well  begun. 

The  damaging  effect  of  a  surprise  of  this  sort  is 
not  to  be  calculated.  It  strengthens  the  adversary, 
it  disconcerts  the  advocate  so  surprised,  and  it 
excites  the  jury  to  laugh  at  him  and  his  case,  and  to 
complete  the  joke  by  finding  against  him  even  when 
his  evidence  may  preponderate. 

Mr.  WaIiren  tells  the  following,  which  we  give 
as  another  illustration  of  the  importance  of  sifting 
the  witness  before  placing  him  on  the  stand  : 

"  Not  long  ago,  on  the  Northern  Circuit,  an  ac- 
tion of  trespass  was  tried  before  Mr.  lustier  Cole- 
ridge, in  which  a  nonsuit  ensued  alnio  t  immedi- 
ately after  the  first  and  only  witness  had  got  into  the 
box ;  for  it  turned  out  that  he  had  not  witnessed  the 
assault,  and  that  all  he  knew  was  from  the  plaintiiT 
himself,  who  had  told  him  what  had  happened.     The 


34  CONDUCT    OF    LITIGATION. 

Judge  was  convulsed  with  laughter,  as  also  was  the 
whole  court — every  one,  in  short,  except  the  plaintiff 
and  his  attorney.  How  could  this  case  have  been 
got  up  ?  It  is  evident  that  the  attorney  must  have 
contented  himself  with  a  hasty  inquiry  from  his 
client  what  was  the  name  of  his  witness  and  what 
it  was  that  he  could  prove."  ^' 

A  similar  carelessness  with  documents  is  likewise 
blamable.  Forgeries  have  been  detected  by  an 
examination  of  the  paper,  disclosing  it  of  less  age 
than  the  writing  purported  on  its  face  to  be.  On  a 
trial  of  an  ejectment,  a  grant  which  one  of  the 
parties  claimed  to  have  received  from  a  county 
under  a  state  law  authorizing  it,  and  which  he  had 
put  in  evidence,  purported  on  its  face  to  be  some 
years  older  than  the  Act  organizing  the  county,  and 
was  at  once  seen  to  be  a  careless  forgery. 

The  blunders — of  the  party's  own  witnesses  damn- 
ing his  character,  of  offering  a  witness  who  knew 
nothing  but  what  the  plaintiff  had  told  him,  and 
the  reliance  of  a  party  on  a  palpably  forged  grant — 
would  have  been  avoided  if  their  lawyers  had  kept 
their  eyes  open,  and  industriously  sought,  when  the 
cases  were  offered,  to  gain  all  information  attainable. 

These  three  instances  of  unusual  carelessness  are 
given.  In  ordinary  practice  but  few  parallels  of  such 
*  Warren's  Duties  of  Attorneys,  169. 


A     CASE     OFFERED.  35 

supineness  will  be  found.  But  there  are  not  many 
k'vvyers  who  before  advising  the  action  of  a  client 
study  the  case  enough.  The  passion  and  confidence 
of  the  client  should  be  disregarded.  He  should  be 
only  used  as  an  index  to  information,  and  all  infor- 
mation accessible  should  be  collected,  every  per- 
tinent document  carefully  scrutinized,  every  possible 
witness  exhaustively  sifted  and  examined,  before  the 
lawyer  should  feel  competent  to  advise  to  litigate 
or  not. 

We  have  o-iven  the  advice  of  Ouintilian  and 
enforced  it  by  much  suggestion.  We  will  now  give 
the  views  of  an  eminent  Englishman  on  the  duties 
of  an  attorney,  which  we  deem  pertinent  to  this 
chapter,  and  we  will  copy  his  very  words  : 

"Your  clients  are  entitled  to  your  best  /er  so  ?i  a/ 
exertions  on  their  behalf.  You  are  bound  to  look 
yourself,  and  that  patiently  and  thoroughly,  into  the 
affairs  on  which  they  consult  you — however  trouble- 
some and  comparatively  thankless  the  task  :  thank- 
less I  mean,  because  of  your  trouble  being,  as  it 
frequently  is,  and  must  be,  inadequately  recom- 
pensed. You  have  undertaken  the  duty  and  you 
must  go  through  with  it  heartily  ;  never  devolving 
on  subordinates  or  others  that  which  the  law  exacts 
from  yourselves.  An  indolent,  capricious  humor 
may  easily  betray  you  into   inextricable   difficulties 


36  CONDUCT    OF    LIJIGATION. 

and  alarming  liabilities.  Apply  therefore  your 
minds  closely  to  the  transaction  as  though  your  owti 
interests  were  concerned.  Do  not  precipitately  act 
upon  your  client's  statemeuts  as  to  such  and  such 
being  facts,  but  ascertain  for  yourselves  if  they  be 
facts.  It  is  your  bounden  duty  to  do  so — and  it  will 
not  afterward  avail  you  as  a  defense,  when  your 
professional  conduct  is  challenged  by  a  disap- 
pointed client,  that  you  had  relied  on  his  statements, 
if  you  had  the  means  of  ascertaining  the  correctness 
of  them,  but  neglected  to  do  so.  It  will,  when 
challenged,  be  for  you  to  prove  your  searches — ^your 
inquiries — that  you  went  to  this  person,  wrote  to 
that,  and  were  duly  in  attendance  at  the  proper  time 
and  place.  How  intolerably  mortifying  for  you  to 
have  your  duties  delineated  with  cruel  precision  by 
he  judge  siunining  7tp  against  yo2i  in  an  action  for 
negligence  brought  by  your  client,  or  by  yourself 
against  him  for  your  bill — but  unsuccessfully  !  See 
in  Wilson  v.  Tucker,  3  Stark.  iV.  P.,  154,  the  conse- 
quence of  an  attorney's  acting  on  his  own  client's 
representation  concerning  a  fact.  That  client  had 
furnished  him  with  an  official  extract  from  a  will  at 
Doctors'  Commons  for  the  purpose  of  the  client's 
advancino^  a  sum  of  moncv  on  the  securitv  of  a 
legacy  bequeathed  in  the  will  to  the  borrower.  The 
attorney  relying  on  the  extract  with  which  his  client 


A     CASE     OFFERED.  37 

hticl  furnished  him,  completed  the  transaction ; 
counsel  preparing  the  requisite  instrument.  But  it 
turned  out  that  in  the  original  will  there  was  a  clause 
which  did  not  appear  in  the  extract  brought  to  the 
attorney  by  his  client,  such  clause  rendering  the 
security  utterly  worthless  !  On  this  the  client  turned 
round  on  his  attorney,  sued  him  for  negligence,  and 
recovered  from  him  every  farthing  of  the  money 
(^210)  which  the  client  had  advanced  on  the  faulty 
security !  Hear  what  Lord  Tenterden  told  the 
jury  :  "  The  complaint  is  that  the  attorney  did  not 
go  to  Doctor's  Commons  and  examine  the  will  itself. 
I  am  of  opinion  that  by  law,  it  is  the  duty  of  an 
attorney  not  to  content  himself  with  a  partial  extract 
from  a  will  tinlcss  something  pass  between  himself 
and  his  client  which  shows  that  it  is  unnecessary  to 
consult  the  original.'  There  w^as  contradictory  evi- 
dence given  here  ;  the  plaintiff's  witnesses  saying  that 
the  client  had  requested  his  attorney  to  take  all  pains 
and  examine  the  will ;  the  defendant's  witnesses, 
on  the  other  hand,  stating  that  the  client  had  told 
his  attorney  that  the  former  had  made  all  requisite 
inquiries  as  to  the  sufficiency  of  the  security,  and 
requested  his  attorney  merely  to  prepare  tlie  deed 
and  complete  the  transaction.  The  plaintiil's  wi 
nesses,  however,  were  believed — and  he  succeede 
Is  not  this  an  instructive  case  .^     Would  that  attr 


38  CONDUCT    OF    LITIGATION. 

ney  ever  again  be  guilty  of  this  slip-shod  mode  of 
doing  business  ?  Assuredly  not ;  and  take  care 
yourselves  never  to  be  so. 

"  1  repeat  then,  as  a  general  rule,  never  rest  satis- 
fied with  nor  act  upon  the  mere  representations  of 
clients  where  you  have  the  means  of  ascertaining 
how  the  facts  really  stand.  And  above  all  eschew  a 
tendency  to  superficial  and  slovenly  habits  of  busi- 
ness :  ever  remembering  that  you  have  not  only 
your  own  client  to  call  in  question  your  conduct  and 
your  motives,  but  also  an  opponent  to  deal  with, 
whose  duty  and  interest  it  is  rigorously  to  scan  the 
propriety  of  your  acts."  * 

We  will  transcribe  another  passage  from  the 
same  author. 

"  Nothing  is  easier  than  to  issue  a  writ  ;  but  if 
improvidently  issued  it  will  by  and  by  come  back  to 
you  with  an  awful  tail  of  vexatious  and  mortifying 
consequences  !  Inquire  in  every  direction  into  facts; 
see  your  client  himself ;  ask  for  and  look  at  his  doc- 
uments, and  consider  them  well ;  go  to  the  witnesses, 
or  send  for  them,  and  hear  iox  yourself  \N\\^\\i^x  they 
can  and  will  really  say  what  your  client  tells  you 
they  can  and  will  ;  and  if  you  entertain  serious 
doubts  take  an  opinion  on  a  case,  candidly  drawn, 
not  slurring  over  or  concealing  features  which  you  do 

*  Warren's  duties  of  attorneys,  238  et  seq 


A     CASH     OFFERED.  39 

not  like ;  and  let  all  this  be  done  before  the  writ 
issues.  Generally  speaking,  you  ought  to  have  under 
your  eye  the  expected  proof  of  the  witnesses  before 
you  issue  your  writ  or  declare  or  deliver  your  pleas, 
and  this  in  almost  as  exact  detail  as  though  the 
period  had  arrived  for  setting  such  matters  forth  in 
your  brief  or  for  an  opinion  on  evidence." ' 

Mr.  Warren  is  so  great  an  authority,  and  he 
enforces  so  conscientiously  the  duty  of  cautious  ex- 
amination before  advising  the  client,  that  we  ven- 
ture, in  addition  to  the  above  quotations,  a  long 
passage  from  another  of  his  works.  We  believe  that 
its  sound  matter  and  entertaining  manner  will  justify 
us  with  every  reader.  Besides,  we  are  in  earnest  to 
cut  up,  root  and  branch,  the  conviction  too  prevalent 
in  America,  that  a  lawyer  should  accept  almost  every 
case  offered.  In  his  Adventures  of  an  Attorney  in 
Search  of  Practice  occurs  the  following  :  " 

"  I  have  already  hinted  that  the  statements  of  an 
angry  client  are  never  to  be  received  for  gospel.  It 
was  long  before  I  discovered  this,  and  yet  longer  be- 
fore I  also  found  that  his  witnesses  are  rarely  to  be 
trusted  at  all !  The  mistake  is  natural :  in  the  first 
place    one    feels    strangely   predisposed    to     place 


'  Warren's  Duties  of  Attorneys,  t68. 
'  Pp.  252-254  (New  York,  1874). 


40  CONDUCT    OF    LITIGATION. 

implicit  faith  in  an  honest  fellow  who  gives  the  best 
possible  proof  of  sound  judgment  in  choosing  you 
as  his  adviser;  and  then  one's  pocket  sympathies  are 
wonderfully  excited  in  his  behalf  (especially  if  the 
case  is  a  heavy  one)  and  after  all  he  must  know  his 
own  affairs  better  than  we  can  do  !  Moreover,  when 
it  does  happen  that  ex  siipcrabu7idanti  cautela  we 
ask  him  for  his  proofs,  there  never  is  any  lack  of 
evidence.  '  Mr.  Johnson  is  a  witness !  he  heard 
every  syllable !  and  Mr.  Atkins  managed  the  whole 
business  and  can  vouch  for  everything  ! '  The  next 
day  he  brings  Mr.  Johnson  and  Mr.  Atkins,  and  they 
do  vouch  for  everything,  and  in  the  state  of  excite- 
ment under  which  they  see  their  employers  labor 
would  willingly  vouch  for  ten  times  more,  if  neces- 
sary, and  find  twenty  other  witnesses  to  back  them. 
No  wonder  if  the  attorney  is  deeply  impressed  with 
the  conviction  that  all  is  true  and  accurate  !  especi- 
ally when  the  bare  intimation  of  a  doubt  will  be 
interpreted  into  the  lie  direct  and  resented  as  a 
serious  insult  by  the  client  who  came  good-naturedly 
to  employ  him  !  Hence  the  writ  is  issued,  retainers 
are  given,  and  it  is  not  till  the  eve  of  trial,  when 
costs  to  a  large  amount  have  been  incurred  on  both 
sides,  that  the  attorney  begins  to  think  it  strange 
that  so  clear  a  case  should  be  so  resolutely  defended  ; 
he  again  catechizes  his  client,  who  by  this  time   has 


A     CASE     OFFERED.  41 

become  calm,  the  clerks  become  doubtful,  where- 
upon the  '  very  clear  case '  becomes  as  hazy  as  the 
city  in  November,  and  the  only  obvious  point  re- 
maining is  that  the  notice  of  trial  should  be  counter- 
manded and  the  costs  taxed  and  paid !  Mtitatis 
mutandis  the  same  result  still  oftcner  happens  on 
the  defendant's  side.  When,  however,  the  excite- 
ment has  subsided,  and  the  sober  certainty  of  costs 
only  occupies  the  mind,  it  is  rare  indeed  to  find  a 
client  possessed  of  that  amiable  disposition  that  he 
will  admit  having  had  '  value  received '  in  the  sym- 
pathizing credulity  with  which  his  attorney  listened 
in  the  first  instance  to  the  tale  of  his  supposed 
wrongs ;  on  the  contrary,  he  blames  you  behind 
your  back  and  reproaches  you  to  your  face  for  '  not 
having  set  him  right ; '  forgetting  that  had  you  even 
attempted  it  at  a  moment  when  he  would  not  believe 
the  possibility  of  his  being  wrong,  he  would  have 
made  a  quarrel  of  it,  and  gone  elsewhere  for  advice." 
The  American  reader  w^ill  recollect  that  Mr. 
Warren  is  in  all  of  the  foregoing  passages  speaking 
of  the  duties  of  attorneys  and  solicitors  The 
English  custom,  preventing  all  intercourse  between 
the  counsel  and  the  parties  and  witnesses,  seems  in- 
tended to  keep  the  former  immaculate  and  impartial, 
just  as  the  Orientals  seclude  their  women  <  )  keep 
them  chaste.     But  as  every  practicing  lawyc  V-^re  is 


42  CONDUCT    OF    LITIGATION. 

both  attorney  and  counsel,  these  excerpts  describe 
his  duties  and  demand  his  attention. 

If  a  lawyer  only  wishes  to  pocket  as  many  fees 
as  he  can,  caring  nothing  for  the  future,  he  will  turn 
off  no  case.  The  law  authorizes  him  to  enlist  in 
almost  any  kind.  He  can  attack  the  most  meritor 
ious  conduct  or  defend  the  most  flagitious,  provided 
only  that  he  use  legal  weapons.  But  if  he  be 
desirous  of  being  a  sound  and  worthy  member  of 
the  mighty  brotherhood  w^hich  has  always  ruled  this 
great  country,  he  will  only  advise  a  client  consulting 
to  bring  or  defend  an  action  after  the  fullest  examin- 
ation possible  justifies  such  advice. 

After  surveying  his  client's  evidence  most  care- 
fully, there  is  another  important  duty  to  be  done. 
The  probable  case  of  the  adversary  must  be  antici- 
pated as  precisely  as*  possible.  We  shall  treat  of 
this  anticipation  fully  in  Chapter  IV.  of  this  Book. 
And  we  will  only  say  now,  that  before  he  advises  the 
client  to  resist  or  surrender,  the  lawyer  consulted 
must  be  satisfied  that  he  has  learned  as  much  as  he 
can,  at  this  particular  point  of  time,  of  the  secrets  of 
the  adversary. 

Here  is  another  great  similarity  of  our  subject  to 
warfare.  No  campaign  should  be  resolved  upon 
until  the  strength  and  resources  of  the  enemy  arc 
ascertained  as  well  as  can  be ;  scouts  and  spies  arc 


A     CASE     OFFERED.  43 

used,  and  all  available  information  is  collected   from 
every  other  source. 

As  we  conclude  this  chapter  we  refer  the  reader, 
in  a  citation  given  below,  to  a  passage  in  Judge 
Cooley's  Suggestions  for  the  Study  of  the  Law 
prefixed  to  his  edition  of  Blackstoncs  Covivicn- 
tariesl  The  author  supposes  an  abstract  of  title  to 
be  brought  to  a  lawyer  by  a  client  for  his  opinion. 
Nothing  appears  plainer  and  easier  at  first  sight 
than  this  abstract  which  is  given.  But  the  great 
lawyer  consumes  many  pages  in  a  most  elaborate 
investigation  every  part  of  which  is  seen  to  be 
necessary,  before  all  doubts  as  to  the  title  can  be 
cleared  up,  and  it  can  be  decided  with  certainty  to 
be  good  or  bad.  The  edition  is  so  common  that  we 
need  not  even  abridge  the  passage.  It  is  by  far  the 
best  instance  that  we  can  find,  illustrating  the  pains- 
taking circumspection  with  which  a  lawyer  must 
sometimes  collect  and  weigh  the  facts  of  a  case 
before  he  can  feel  that  he  is  competent  to  give 
advice. 

'  Pp.  xvii-xxi.  {iiote  u). 


44  CONDUCT    OF    LITIGATION. 

CHAPTER     III. 

A    CASE    OFFERED. 

{JZoiitimted^ 

The  author,  if  he  could  by  any  means  in  his 
power,  would  enforce  more  impressively  the  import- 
ance of  the  careful  investigation  insisted  upon  in  the 
preceding  chapter  before  advising  a  client  decisively, 
lie  asserts  most  earnestly  that  :  a  lawyer  should 
never  advise  the  bringing  of  an  action  or  the 
making  of  a  defense  until  he  has  good  reason  to 
believe  he  has  collected  all  possible  information,  and 
has  digested  and  understands  this  information. 

This  is  no  counsel  to  procrastinate  the  day  of 
hnal  advice.  All  of  this  investigation,  though  made 
ever  so  thoroughly,  should  be  made  promptly  and 
accurately.  A  lawyer  in  practice  is  one  of  the 
busiest  of  men,  and  if  he  have  any  inclination  to 
sloth,  he  should  correct  it  as  earnestly  as  he  should 
check  himself  did  he  find  that  he  was  acquirmg 
habits  of  dissipation.  lie  must  learn  promptness 
and  quickness.  He  will  often  be  confronted  with 
emergencies  requiring  decisive  action  instantly,  and 
while  he  should  never  be  in  a  flurry  he  should  habit- 
uate himself  to  rapid  and  earnest  work. 


A     CASE     OFFERED.  45 

Suppose  that  your  mail  is  laid  on  your  tabic. 
There  are  twenty  letters  which  you  are  to  answer. 
Now  forget  everything  else — break  open  a  letter — a 
business  letter  is  usually  short — concentrate  your 
mind  on  its  contents — in  a  few  seconds  you  have  not 
only  read  it,  but  also  decided  the  reply  necessary. 
Then  answer  at  once.  Go  through  with  all  this 
quickly — never,  however,  taking  up  your  pen  until 
you  have  decided  exactly  what  you  arc  to  answer, 
and  never  permitting  your  mind  to  wander  off  to 
any  other  matter,  and  in,  often,  less  than  a  half  hour 
the  letters  are  all  answered,  and  fully  answered. 
And  the  work  is  more  neatly  and  carefully  done 
than  if  you  had  wasted  a  whole  morning  over  the 
task. 

This  instance  is  given  to  illustrate  the  despatch 
with  which  a  lawver  m.ust  look  into  a  case.  The 
constant  cry  to  him  from  all.  of  his  clients  is  "  what 
will  you  do  1 "  "  what  must  I  do  ? "  He  must,  there- 
fore, not  only  cultivate  quickness  in  doing  this  work 
of  preliminary  investigation,  but  he  must  also  spur 
himself  into  a  promptness  of  deciding.  If  he  had 
his  whole  life  to  study  one  case  he  might  long  defer 
his  advice  as  Lord  Eldox  did  his  decisions.  But 
the  press  of  business,  the  uncertainty  of  the  lives  of 
witnesses,  statutes  of  limitations,  and  the  interest  and 
passion  of  clients  will  not  permit   him  to  rest  long. 


46  CONDUCT    OF    LITIGATION. 

In  a  moment,  as  it  were,  he  must  decide  to  bring 
the  meditated  action  or  make  the  proposed  defense  ; 
and  by  as  much  as  he  must  in  the  average  speedily 
decide  such  important  questions,  by  so  much  must 
he  strive  to  acquire  rapid  facihty  in  mastering  all 
available  information  before  deciding. 

Supposing  that    the  consulted  lawyer  has  mas- 
tered the  facts  of  the  client's  case,  and  also  antici 
pated  as  well  as  he  can  the  case  of  the  adversary— 
what  is  his  next  duty  ? 

lie  is  next  to  meditate  all  these  facts  to  see  what 
is  their  legal  character — or  to  use  the  colloquial 
language  of  professional  life,  to  see  what  case  they 
make.  What  points  of  controversy  are  presented, 
and  what  will  be  the  nature  of  the  issues  raised  if 
litigation  is  resorted  to  }  Will  the  issue  be  one  of 
law  or  one  of  fact,  or  will  it  be  composed  of  both  } 

I  will  give  two  extracts  from  a  late  work  of  Prof. 
Amos,  which  will  set  forth  what  is  to  be  done  for  the 
client. 

"  It  seems  universally  confessed  that  the  whole 
proceedings  [the  author  is  speaking  of  civil  proce- 
dure] necessarily  resolve  themselves  into  two  distinct 
parts — the  one  concerned  with  ascertaining  the  real 
point  or  points  in  dispute  between  the  parties ;  and 
the  other  with  determining  the  reality  of  essential 
facts  alleged  on  either  side,  and  the  existence  or  ap- 


A     CASE     OFFERED.  A7 

plicability  of  cited  rules  of  law.  The  first  part  of 
the  process  is  a  necessary  interlude  or  transitional 
stage  between  the  vague  and  indefinite  controversy 
which  a  sense  of  injury  produces  and  which  passion 
fans  into  a  (lame  and  the  cold  and  emotionless 
inquiry  which  is  conducted  within  the  walls  of  a 
court  of  justice."  ' 

Again,  the  same  author  adds  : 

"  A  litigant  needs  the  assistance  of  a  properly 
qualified  adviser  and  representative  for  a  variety  of 
purposes  quite  distinct  from  one  another.  Such 
purposes  are  (i)  information  as  to  the  procedure  of 
the  court  and  as  to  the  formal  mode  of  pressing  his 
claim  or  of  resisting  the  claim  or  charge  of  another ; 
(2)  aid  in  eliciting  relevant  evidence  from  witnesses 
in  his  favor,  and  in  exposing  the  irrelevancy,  incon- 
sistency, or  general  incredibility  of  the  evidence  pro- 
d  iced  on  the  other  side ;  (3)  aid  in  arranging  in  the 
most  concise  and  manageable  form  the  facts  of  his 
own  case  as  well  as  those  of  his  adversary's,  so  as  to 
lay  the  foundation  of  a  simply  reasoned  argument  in 
his  own  favor ;  (4)  aid  in  availing  himself  of  the 
rules  of  law  which  are  in  his  favor,  and  in  exposing 
the  inapplicability  of  those  which  are  or  may  be 
quoted  against  him  " ' 

'  The  Science  of  Law,  295 
•  Ibid.  sii. 


48  CONDUCT    OF    LITIGATION. 

I  might  have  cited  these  excerpts  later  on  to 
illustrate  the  aim  and  duties  of  preparation  of  the 
case.  But  the  proper  advice  to  the  client,  whether 
he  shall  resort  to  the  courts  or  not  must  be  preceded 
by  such  an  analysis,  testing,  grouping,  and  sifting 
of  both  sides  as  are  inculcated  in  the  language  given 
of  Prof.  Amos. 

After  the  facts  have  been  carefully  meditated, 
and  the  lawyer  sees  all  that  we  have  told  him  that 
he  should  see — knowing  now  both  sides — shall  he 
advise  abandonment  or  controversy  ?  And  he  is  to 
ask  himself  if,  on  this  state  of  facts  under  the  law 
as  I  believe  it  will  be  administered,  are  the  probabil- 
ities in  favor  of  success  for  the  case  made  by  the 
facts  1  If  he  can  answer  yes,  conscientiously,  to  this 
question,  then  he  shall  advise  litigation  under  that 
remedy  and  in  that  court  which  seem  to  him  best. 

Some  cases,  when  analyzed,  present  but  a  single 
issue — it  may  be  of  fact  or  it  may  be  of  law.  These 
are  easily  handled.  The  books  will  decide  the  one, 
and  a  review  of  the  testimony,  both  of  the  client  as 
collected,  and  of  the  adversary  as  anticipated,  will 
quickly  decide  the  other. 

But  whether  the  case  be  complex  or  simple,  the 
same  test  must  be  applied.  Before  he  advises  action 
the  lawyer  must  be  satislied  that  the  probabilities  of 
recovery  for  the  plaintiff,   or  of  successful   defense 


A     CASE     OFFERED.  49 

for  the  defendant,  outweigh  those  of  the  opposite 
result. 

The  lawyer  can  neither  predict  nor  assure  the 
event — he  can,  at  best,  but  hope  and  expect.  He  is 
to  be  governed  by  probabilities  and  not  certainties 
and  exactitudes.  So  the  general  is  justified  or  not 
in  action  involving  the  lives  of  his  soldiers  and  the 
safety  of  his  country  by  the  fact  that  the  probabili- 
ties appeared  with  reason  to  favor  him  or  to  be 
against  him  when  he  decided  and  commenced  his 
advance  or  defense. 

It  would  be  fruitless  to  attempt  an  enumeration 
of  all  the  superiorities  of  law  and  evidence  for  liti- 
gants. They  are  different  in  different  states,  in  dil"- 
ferent  courts,  and  on  different  sides  of  the  same 
court.  The  studious  lawyer  is  led  to  them  by  his 
knowledge  of  the  law.  He  might  safely  advise  a 
defense  for  a  client  against  a  criminal  charge  upon  a 
measure  of  proof  that  would  not  avail  for  him  on 
the  civil  side  of  the  court,  as  the  commonwealth  and 
government  are  held  to  stricter  proof  than  a  plain- 
tiff. Again  :  in  looking  into  an  offered  defense  to  a 
criminal  charge  you  may  fmd  that  you  have  to  en- 
counter an  accomplice,  whom  the  law  requires  to  be 
corroborated  before  there  can  be  a  conviction  on  his 
testimony,  and  that  you.  may  by  secret  preparation 
and   standing    ready,   overwhelm  the  corroboration 


50  CONDUCT    OF    LITIGATION. 

which  \v:is  fully  disclosed  at  the  examination  before 
the  magistrate.  These  two  instances  are  from  the 
criminal  law.  Again  :  you  may  be  introduced  to  a 
transaction  resting  upon  some  cardinal  particular,  to 
which  there  are  many  witnesses  divided  by  bias  and 
interest,  and  you  can  effect  a  preponderance  by  call- 
ing the  larger  number  or  by  impeaching.  Tie  of 
the  opposite.  Again  :  you  may  find  that  your  ad- 
versary conceives  an  attack  or  resistance,  holding 
the  lavv  other  than  you  can  demonstrate  *'  to  be. 
Here  3'Ou  have  invincible  superioritif^:;. 

By  these  instances  we  have  illustrated  superiori- 
ties V'^inning  for  that  party  in  whose  favor  they  ex- 
ist. And  the  caution  must  be  repeated  1  t  thi^^y 
can  onl)'-  be  believed,  not  knov  n,  to  oxist.  Thr- 
coolest  lieaded  man  may  make  mistakes,  and  often 
decide  that  he  has  an  advantage  wherr^  on  the  trial 
he  will  be  shown  weakest.  But  he  will  do  right 
when  he  thinks,  with  good  reason,  that  he  has  such 
advantages,  to  advise  acting  as  they  suggest.  And 
a  lawyer,  to  use  a  colloquial  phrase,  should  tal  a 
case  offered  when,  after  such  an  examination  as  has 
been  described  in  the  last  and  this  chapter,  and  after 
as  much  anticipation  as  there  may  be  of  the  strength 
of  the  adversary,  he  has  probable  cause  for  believing 
that  he  has  for  his  client  superiority  either  on  the 
law  or  the  evidence,  or  on  both. 


A     CASE     OFFERED,  Si 

The  character  of  the  good  lawyer  will  be  more 
discussed  hereafter,  but  it  must  be  said  now,  that  he 
should  be  neither  a  timid,  despondent,  nor  an  over- 
sanguine  man.  Napoleon's  maxim  as  to  the  gen- 
eral, can  be  applied  to  the  lawyer : 

"  The  first  qualification  of  a  general-in-chief  is  a 
cool  licad — that  is,  a  head  which  receives  just  im- 
pressions, and  estimates  things  and  objects  at  their 
real  value.  He  must  not  allow  himself  to  be  elated 
by  good  news,  or  depressed  by  bad. "...  "  Some 
men  are  so  physically  a  -I  morally  constituted 
as  to  see  everything  through  a  highly  colored 
medium.  They  raise  up  a  picture  in  the  rnind,  on 
every  slight  occasion,  and  give  to  every  trivial  oc- 
currence a  dramatic  interest." 

The  maxim  further  asserts,  that  such  men  are 
not  fitted  for  the  commr.nd  of  armies.  It  could 
be  said,  with  truth,  that  they  would  not  make  good 
scouts,  nor  make  a  good  reconnoissance,  nor  could 
they  report  the  progress  of  a  battle,  nor  do  well  any 
other  act,  whether  important  or  trivial,  which  re 
quires  coolness  and  a  well-balanced  judgment. 

Of  equal  value  with  this  needed  coolness,  is  the 
qualification  of  patience.  The  prolixity  of  the  client 
and  the  dullness  of  the  many  details  which  we  have 
urged  as  necessary  to  be  thoroughly  examined 
should  never  tease  the  lawyer.     He  should  amiably 


52  CONDUCT    OF    LITIGATION. 

stand  any  strain  of  his  patience,  until  he  is  assured 
that  he  at  last  thoroughly  understands  the  case 
offered. 

These  two  qualities  of  coolness  and  patience  are 
indispensable.  Without  coolness  the  facts  will  never 
be  accurately  understood,  and  without  patience,  they 
will  never  be  all  collected. 

It  is  often  said  of  some  bright  and  shining  law"- 
yer,  that  he  is  never  dangerous  until  he  loses  his 
case.  The  commendation  means,  that  by  losing,  he 
has  learned  to  win  the  case  afterwards.  If,  before 
he  loses,  he  has  paid  the  fullest  attention  necessary 
to  his  case,  and  he  discovers  in  the  trial  resources 
which  he  could  not  have  discovered  before,  and  it  is 
thus  that  he  is  dangerous,  then  the  commendation  is 
justly  given.  But,  if  by  proper  attention  to  all  of 
the  particulars  of  the  case  when  it  is  offered,  he  gen- 
erally wins  at  the  first  trial,  all  will  agree  that  he  is 
still  more  dangerous.  Some  lawyers  permit  their 
case  to  float  at  will,  and  never  have  any  defmite 
knowledge  of  it,  until  an  encounter  with  the  adver- 
sary in  court  coerces  them  to  an  attention  and 
study  which  should  have  been  given  when  it  w\ts 
first  offered.  This  encounter  often  demonstrates 
that  these  careless  counsel  should  have  then  advised 
an  abandonment  of  the  case. 

We  shall  soon  discuss  the  plan  of  conduct.     The 


A     CASE     OFFERED.  53 

lawyer  having  advised  litigation,  must  decide  hov/  he 
will  litigate.  He  must  adopt  a  theory  of  the  case. 
Brutus  argued  that  Milo,  charged  with  killing  Clo- 
dius,  was  to  be  commended  for  killing  a  pernicious 
citizen,  while  Cicero  maintained  that  Clodius  had 
been  justifiably  killed  as  a  lier-in-wait,  but  with  no 
intention  to  kill,  on  the  part  of  Milo.  Now  Cicero 
or  Brutus  was  right,  as  the  facts  dictated.  Or, 
again,  both  theories  might  have  been  used,  and  pre- 
sented under  the  usual  dilemma  of  contradictory 
defenses.  But  the  theory,  whether  of  offense  or  de- 
fense, can  only  be  satisfactorily  chosen,  after  the 
fullest  study  of  all  the  particulars.  And  we  have 
only  time  to  say  here,  that  the  true  theory  is  the 
sine  qua  71011  of  all  intelligent  advice,  preparation 
and  subsequent  management  of  the  case.  And  this 
true  theory  the  lawyer  must  have  before  he  decides 
for  his  client  to  attack  or  defend. 

Other  things  being  equal,  that  lawyer  is  the  most 
dangerous  adversary  who  learns,  at  once,  everything 
possible  concerning  a  case  when  it  is  offered,  and 
who  declines  to  take,  or  takes,  prepares  and  tries  the 
case  according  to  that  which  he  has  so  learned.  Says 
his  biographer :  "  Burr  began  practice  upon  the 
principle  of  never  undertaking  a  cause  which  he  ddi 
not  feel  sure  of  gaining.  And  I  am  assured  by 
another  venerable  lawyer  of  this  city,  who  was  fre- 


54  CONDUCT    OF    LITIGATION. 

quently  engaged  with  Burr,  that  he  never  in  his  life 
lost  a  cause  which  he  personally  conducted." 

The  biographer  is  right  in  ranking  his  subject,  as 
he  conceives  him,  below  the  first  class  of  lawyers ; 
but  the  qualities  of  Burr,  as  set  forth  by  Mr.  Parton, 
which  should  be  dwelt  upon  and  contemplated,  are 
the  coolness  with  which  he  looked  into  the  facts  of 
his  cases,  the  indefatigable  diligence  of  his  study  of 
these  facts,  and  his  resolve  to  enlist  in  no  apparently 
doubtful  cause.  Such  extraordinary  coolness  and 
industry,  united  with  the  same  resolve,  in  a  man  far 
inferior  to  Burr  in  mental  vigor,  would  still  make 
him  an  eminent  lawyer.  The  danger  of  having  him 
as  an  adversary  would  be  that  he  would  so  seldom 
lose  at  all. 

I  shall  never  forget  a  famous  lawyer  of  my  circuit 
who  was  known  all  over  the  country  when  I  was 
called  to  the  bar.  He  seldom  lost  a  case.  He  had 
an  air  of  winning  because  he  could  not  help  it. 
So  great  had  become  his  fame  as  a  lawyer,  that 
when  he  deliberately  took  a  position,  there  sprung 
up  with  the  court  and  the  bar,  and  often  with  his  ad- 
versaries, the  conviction  that  he  was  right,  and  must 
prevail.  He  was  as  strong  on  the  facts  before  the 
jury,  as  he  was  before  the  court,  on  the  law.  At 
nisi  prizes  his  conduct  was  an  adaptive  flexibility 
which  won  every  inch  of  vantage  ground,  and  par- 


A     CASE     OFFERED.  55 

ried  every  avoidable  attack,  until  his  columns  ad- 
vanced and  swept  the  field.  And  afterwards,  on  re- 
view in  the  court  of  errors,  he  would  show  that 
there  had  been  no  fault  on  his  side.  He  had,  in  his 
eagerness  offered  no  incompetent  evidence,  and  he 
had  obtained  no  improper  instruction  from  the 
judge.  The  verdict  he  had  won  would  stand,  and 
evejrybody  would  see  that  it  was  right.  He  was,  all 
the  while  that  I  observed  him,  busy  with  politics. 
This  wonder  struck  me,  and  I  began  to  study  him. 
My  first  observation  was,  that  he  always  seemed  to 
have  a  plan  of  conduct  fully  premeditated,  which  he 
would  follow  amid  all  the  waverings  to  and  fro  of 
the  trial.  Then,  again,  I  noticed  that  occasionally 
some  uaexpected  turn  would  develop  the  case  to 
be  totally  different  from  what  his  pleadings,  his 
opening  and  his  examination  of  witnesses  had 
shown  to  be  his  understanding  of  it,  when  he  would 
hesitate  a  moment  in  thought.  Sometimes  he 
would  go  on  and  win ;  if  he  went  on  at  all,  it  was 
with  confidence ;  but  if  he  saw  no  road  to  success 
he  would  surren4er.  Again  :  I  noted  how  little  time 
he  had  for  preparation. 

I  contemplated  and  studied  him  for  many  years. 
I  found  that  he  joined  with  an  unusually  accurate 
and  rapid  insight  into  the  law  controlling  facts  pre- 
sented, a  still  more  wonderful  faculty  for  getting  at 


56  CONDUCT    OF    LITIGATION. 

once  to  the  whole  truth  of  the  case.  He  seemed 
to  guess  unerringly  at  everything  on  both  sides. 

Next,  he  took  no  bad  cases.  His  independence 
was  complete.  No  importunities,  not  even  those  of 
charming  women,  could  procure  his  exertions  when 
he  had  looked  into  the  case  and  found  it  un- 
maintainable. He  somewhat  vaunted  his  firmness 
in  turninsf  off  bad  cases.  He  had  not  the  idle  am- 
bition  of  the  vain  advocate  who  boasted  that  he 
could  win  any  cause.  But  he  did  feel,  with  reason, 
that  he  could  lose  no  good  case ;  and  he  never 
seemed  to  desire  winning  a  bad  one. 

His  industry  was  as  marvelous  as  the  rapidity  of 
his  work.  Its  only  pause  was  the  completion  of  his 
task.  He  used  to  say  that  ninety-five  per  cent,  of 
success  at  the  bar  was  mere  drudgery  done  at  the 
proper  time.  I  would  improve  upon  his  saying,  and 
urge  that  the  most  considerable  part  of  success  in 
the  law  is  the  drudgery  of  practice  faithfully  and  in- 
telligently done. 

But  his  example  is  given  here  to  enforce  the  im- 
portance of  well  understanding  a  case  before  taking 
it.  He  said,  once,  that  his  success  had  been  in  the 
judicious  selection  of  his  cases. 


A     CASE     OFFERED.  5? 


CHAPTER  IV. 

A    CASE    OFFERED 

{Coriclitdcd^f 

Having  discussed  the  subject  of  these  chapters 
fully  in  the  main  particulars,  we  will  add  a  few 
desultory  reflections  which  we  think  worthy  of  at- 
tention. 

In  the  first  place,  while  insirlf'ng  so  much  as  we 
do  upon  the  closest  attention  possible  to  all  the  de- 
tails of  a  case  presented,  before  advising  the  client 
to  prosecute  or  abandon,  we  do  not  wish  to  be  un- 
derstood as  recommending  a  timid,  doubting,  or 
over-cautious  spirit  We  copy  from  Lord  Camp- 
bell's Life  of  Chief  Justice  Hale,  a  quoted  passage 
which  we  approve : 

"He  [Hale]  began  with  the  sp*x:ious  but  im- 
practicable rule  of  never  pleading  except  on  the 
right  side,  which  would  make  the  counsel  to  decide 
without  knowing  either  facts  or  law,  and  would  put 
an  end  to  the  administration  of  justice.  If  he  saw  a 
cause  was  unjust,  he,  for  a  great  while,  would  not 
meddle  further  in  it  but  to  give  his  advii  e  that 
it  was  so.  If  the  parties,  after  that,  would  go  on, 
they  were  to  seek  another  counsellor,  for  h"   would 


«;8  CONDUCT    OF    LITIGATION. 

assist  none  in  acts  of  injustice.  Yet,  afterwards,  he 
abated  much  of  the  scrupulosity  he  had  about  causes 
that  appeared  at  first  view  unjust." 

The  lawyer  must  recollect  that  the  more  con- 
scientious he  has  been  in  his  past  practice,  the  more 
will  his  clients  be  disposed  to  acquiesce  in  his  de 
cisions.  There  are  many  of  our  profession  in  Amer- 
ica whose  word  is  law  almost  to  nine-tenths  of  their 
neighbors.  And,  therefore,  while  we  are  so  anxious, 
as  we  should  be,  to  avoid  encouraging  foolish  litiga- 
tion, we  should  be  careful,  likewise,  to  avoid,  by  a 
premature  decision,  suffocating  a  good  case.  We  are 
neither  judges  nor  arbitrators.  We  can  only  decline 
an  offered  retainer  when  it  clearly  appears  that  the 
client  has  no  case.  We  must  be  as  certain  of  his 
having  no  case  as  the  law  requires  the  jury  to  be  of 
the  guilt  of  the  defendant,  before  they  can  convict 
him.  If  the  case  i-^  prima  facie  respectable,  we  can 
not  turn  it  off.  If  it  is  even  doubtful,  we  \.x^Ji  con- 
sider of  it.  Before  we  can  turn  it  off  we  must  be 
certain,  beyond  a  reasonable  doubt,  that  it  is  bad. 
Lord  Eldon,  the  doubting  and  hesitating  chancellor, 
felicitated  himself  that  his  reprehended  dilatoriness 
and  looking  at  the  original  instruments,  had  saved 
many  a  landed  estate  to  the  true  owner  which 
might,  but  for  the  wise  delay,  have  gone  to  the  ad- 
versary.     We   should   permit   neither    our    needed 


A     CASE     OFFERED.  59 

promptness,  and  firmness  for  what  we  deem  the  good 
cause,  to  deprive  a  cHent,  trusting  and  confiding  all 
in  us,  of  some  right,  which  better  attention  might 
have  discovered  before  we  advised  him  to  avoid  con- 
troversy. And  yet  we  must  say,  that  this  full 
knowledge  of  the  case  comes  rather  from  industry 
and  a  resolute  taking  hold  of  it  at  the  very  first, 
than  from  any  long  delay  and  lazy  contemplation. 

We  will  next  treat  of  ethics,  and  especially  of 
the  often-urged  right  of  the  client  to  command  the 
services  of  his  lawyer,  and  to  hold  him  to  the  final 
prosecution  of  the  case,  and  control  his  conscience. 
After  much  search,  we  find  no  authority  so  satisfac- 
tory as  David  Paul  Brown.  We  wish  that  we 
had  space  to  p^ive  all  his  chapter  on  forensic  ethics 
and  etiquette."  We  will  take  a  few  pages  from  that 
chapter,  accompanying  them  with  such  comments  as 
we  deem  necessary.  After  setting  forth  the  usual 
oath  of  tlie  lawyer  on  his  ndmissio'i,  reprehending 
the  s  Tong  language  of  Bro'jgham  and  Erskine,  as 
to  the  duty  of  the  counsel  to  stand  by  his  client  to 
the  last,  he  commends  the  doctrine  of  Lord  Hale, 
who  would  not  have  anything  made  by  the  advocate 
to  look  better  or  worse  than  it  deserves,  and,  still 
more,  approves  the  following  language  of  Chief  Jus- 
tice Gibson  : 

*  2  Forum,  25,  cf  seq. 


6o  CONDUCT    OF    LITIGATION. 

"  It  is  a  popular  but  gross  mistake  to  suppose 
that  a  lawyer  owes  no  fidelity  to  any  one  except  his 
client,  and  that  the  latter  is  the  keeper  of  his  profes- 
sional conscience."     .     .     . 

"  He  violates  his  official  oath  when  he  con- 
sciously presses  for  an  unjust  judgment,  much  more 
so  when  he  presses  for  the  conviction  of  an  innocent 
man.  .  .  .  The  high  and  honorable  office  of  a 
counsel  would  be  degraded  to  that  of  a  mercenary, 
were  he  compelled  to  do  the  biddings  of  his  client, 
against  the  dictates  of  his  own  conscience." 

And  the  author  of  the  Forum  continues :  "  A 
lawyer  is  not  morally  responsible  for  the  act  or  mo- 
tive of  a  party  in  maintaining  an  unjust  cause,  but 
is  morally  responsible  if  he  does  it  knowingly,  how- 
ever he  may  *  plate  sin  with  gold.'  We  do  not  speak 
now  of  the  mere  impression  or  opinion  of  counsel, 
but  actual  hwzuledge.  Suppose  an  action  brought 
to  recover  from  a  widow  or  an  orphan  all  they  have 
in  the  world,  and  the  counsel  is  informed  that  only 
half  the  money  is  due  by  the  husbana  or  father  of 
defendant,  as  copartner  with  plaintiff",  and  these  facts 
could  not  be  shown  by  the  defendant,  what  lawyer 
would  claim  to  recover  in  such  a  case  }  We  repeat 
it,  a  lawyer  is  bound  to  refuse  a  case  that  he  believes 
to  be  dishonest,  or  to  retire  from  it  the  moment  he 
believes  it  to  be  so.     And  he  is  also  bound  to  avoid 


A     CASE     OFFERED.  61 

litigation  unless  it  is  necessary ;  and,  when  necessary 
or  unavoidable,  always  to  adopt  the  least  offensive 
means  for  bringing  it  to  a  satisfactory  result."   .   .   . 

"  A  lawyer  has  a  right  to  take  all  the  advantage 
his  learning  and  talents  afford  him,  in  order  to  sus- 
tain a  good  cause  or  defeat  a  corrupt  one ;  but  he 
has  no  privilege  to  substitute  his  talents  or  learning 
for  the  honesty  of  a  case  and  thereby  render  iniquity 
triumphant.  When  he  has  doubts  as  to  the  correct- 
ness of  his  positions,  he  may  fairly  incline  in  favor 
of  the  party  he  represents,  and  sustain  his  views  by 
every  authority  and  fact  that  the  law  or  evidence 
may  supply,  leaving  it,  of  course,  to  the  court  or 
jury  to  ratify  or  reject  them.  He  is  not  to  decide 
the  case,  nor  is  he  morally  answerable  for  the  cor- 
rectness of  the  motives  by  vrhich  he  is  influenced." 
.  .  .  .  "  A  client  called  suddenly  upon  counsel 
and  laid  a  heavy  fee  upon  the  table.  '  I  am,'  said  he, 
'  the  defendant  in  a  case  v.hich  is  now  going  on,  and 
I  wish  to  engage  you  ;  and  I  hope  you  will  treat  the 
party  with  some  severity,  as  he  has  practiced  great 
severity  upon  me.'  '  Before  I  take  your  fee,'  said  the 
lawyer,  '  let  us  understand  each  other ;  do  you  wish 
me  to  treat  the  plaintiff  with  severity  whether  I 
may  think  he  desei-ves  it  or  not  1  If  I  think  he  de- 
serves it,  I  shall  do  it  without  your  stipulation ;  and 
if  I  think  he  does  not  deserve  it,  I  shall  not  do  it  for 


62  CONDUCT    OF    LITIGATION. 

any  fee  you  can  pay.'  Of  crurse  the  client  saw  his 
folly,  and  the  case  proceeded  upon  the  fair  and  honor- 
able terms  of  the  counsel. 

"  A  lawyer,  we  assert,  is  not  bound  to  take  every 
cause  that  is  tendered  to  him — he  is  no  man's  man. 
He  is  the  adviser,  but  not  the  slave  or  serf  of  his 
client.  H'  .  not  o; Jy  not  boi  to  take  a  case 
which  he  clearly  perceives  to  be  unconscieniious, 
but  he  is  bound  to  discoit-rao;e  its  institution." 

And  the  same  auti  .  ^Iso  fully  concedes  .'■i'^ 
righl  of  ;he  client  to  hav ,;  lis  dc.tbtf  '  cause  t/rjd. 
He  narrates :  "  A  young  member  of  the  bar,  who 
has  since  reached  some  '  ^^mence  •  n  n  applied  to 
in  a  first  case,  w'v^ch  was  somewhaL  complicdoCd 
and  dcubtful,  waitcv'  •  the  late  Mr.  RawlE;  stated 
the  case,  and  remari.^J  at  the  same  time,  that  he 
thought  't  a  bad  one.  'You  are,'  said  Mr.  Rawle, 
a  presumptuous  young  man,  thus  to  venture  in  the 
outset  to  determine  what  a  court  and  jury  only 
can  decide  after  hearing  all  the  testimony.'"  And 
Mr  Brown  pro.,  ds  to  quote  approvin  '7  the  well- 
known  views  of  Judge  Sharswood,  that  cases  are 
to  be  decided  according  to  the  fixed  and  unbend- 
ing rules  of  law,  and  not  according  to  any  mere 
notions  of  justice  held  by  courts  and  juries. 

This  matter  can  not  be  made  plain  in  words^ 
Legal  rights  are  the  due  of  every  client  from  the 


A     LA  Si:     OFFIiRED.  63 

courts,  and,  of  course,  from  the  lawyers,  who  are 
but  officers  of  the  cc  rt,  and  can  not  put  themselves 
above  the  judges.  Tlie  most  just  debt  will  be 
barred  by  the  statute  of  limitations.  Many  an  in- 
strument for  which  loney  has  been  paid,  or  for  the 
setting  up  of  which  there  exist  other  claims  of 
the  strongest  moral  nature,  are  avoided  every 
day  by  the  courts.  The  client  can  command  of 
you  that  you  give  him  the  benefit  of  all  such 
points.  But  you  are  not  to  ii-ip  him  by  fraud,  nor, 
by  either  the  suggestion  of  falsehood  or  the  sup- 
pression of  the  tnth,  make  out  such  a  case  of 
nets  as  will  entitle  him  to  -:  "ilse  verdict.  Or,  to 
state  it  in  other  words,  if  the  facts,  that  is,  the  whole 
facts,  give  Jiim  a  case  \  .lich  the  law  of  the  land 
recognizes  as  a  case,  the  client  may  command  your 
services  to  vvin  it  for  him — but  you  are  not  to 
alter  the  facts  to  nelp  make  a  case  which  is  not 
the  tr  th. 

But,  as  we  have  already  said,  this  matter  is  not 
always  clear.  You  will  often  meet  with  cases  which 
must  be  decided  r  "her  b)^  your  intuition  and  con- 
science than  your  understanding.  The  question 
often  is  akin  to  those  others  of  sound  discretion  like 
the  reasonable  doubt  or  exemplary  damages,  or  the 
power  of  a  judge  to  grant  a  new  trial  on  the  con- 
ceived contrariety  of  the  verdict  to  the  evidence. 


64  CONDUCT    OF    LITIGATION. 

I  advise  that  whenever  you  declme  a  case,  be- 
cause you  do  not  deem  it  maintainable,  that,  after 
disclosing  fully  your  reasons,  you  advise  the  client 
to  sound  other  counsel.  You  can,  with  truth, 
remind  him  that  probably  you  have  become  preju- 
diced against  his  case,  and  are,  therefore,  a  bad  law- 
yer for  him.  And  keep  a  record  of  the  cases 
you  decline  after  full  investigation,  and  their  final 
results,  and  you  will  find  that  in  the  long  run  you 
take  ten  cases  which  you  should  not,  to  one  that 
you  turn  off  mistakenly. 

There  is,  however,  a  class  of  lawyers  who  are 
too  busy  and  too  much  in  the  court-room  to  orig- 
inate any  business.  They  are  engaged,  generally, 
after  the  issue  has  been  made  up.  The  responsibility 
of  bringing  the  action  or  making  a  defense  has 
been  undertaken  by  a  junior  associate.  The  senior 
should,  at  his  earliest  opportunity,  look  carefully 
into  the  case,  and  satisfy  himself  that  it  is  main- 
tainable. If  it  is  not  maintainable,  he  should 
decline  it.  Often,  however,  the  ability  of  the  junior 
is  more  than  a  sufficient  guaranty  of  a  good  case 
to  the  senior. 

Before  closing  this  chapter  we  will  briefly  notice 
a  class  of  cases  that  often  give  us  much  trouble. 
A  client  will  now  and  then  offer  a  case,  which  the 
law,   the  evidence,   and  right   all  support,  and   yet 


A     CASE     OFFERED.  65 

we  see  that  it  can  not  be  gained  in  the  courts. 
Juries,  judges  and  witnesses,  will  band  against  us 
irresistibly,  we  know,  whenever  we  dare  risk  a  trial. 
Sometimes  our  client  is  a  corporation  which  the 
whole  community  thinks  is  too  rich  and  powerful 
already,  to  have  anything  more  even  of  its  own. 
Again,  the  client  may  belong  to  a  class  of  society 
almost  proscribed  by  that  class  which  furnishes 
jurors,  as  in  some  parts  of  the  South  it  is  foolishness 
for  a  white  to  send  his  case  to  a  negro  jury,  and 
in  others  a  negro  can  not  have  justice  from  a  white 
jury.  And  in  other  states  workingmen  may  be 
in  the  ascendant,  and  incline  to  deny  fair  verdicts 
to  merchants  and  professional  men  contending 
with  one  of  their  class.  It  will  now  and  then  be 
sheer  folly  to  advise  a  client  to  carry  his  just 
cause  into  court. 

Here  the  lawyer  can  not  blame  himself  for  not 
being  able  to  cure  society  of  its  evils.  He  must 
look  about  him,  and  do  what  he  can  in  advising 
his  unfortunate  client.  Often  a  high-toned  bar  is 
of  great  avail  against  these  unjust  prejudices,  and 
a  composition  approximating  the  right  of  the  case 
can  be  secured  by  their  intervention.  And  some- 
times a  reference  will  be  submitted  to,  and  thus 
the  client  acquire  some  measure  of  justice ;  far 
short,  it  may  be,  of  his  due,  yet  as  far  exceeding 


66  CONDUCT    OF    LITIGATION. 

what  he  could  expect  to  obtain  in  court.  If  you 
can  see  no  help  of  this  kind  for  him,  you  should 
advise  him  to  decline  controversy.  But  he  can 
command  your  services.  You  can  not,  in  con- 
science nor  in  law,  refuse  them  to  him.  The  law 
orders  you  to  render  to  him  cheerfully  your  ad- 
vocacy of  his  just  cause.  Your  conscience  dictates 
that  you  should,  if  called,  struggle  to  set  up  down- 
fallen  right,  and  almost  reproaches  you  because 
you  believe  your  fellow  creatures  incurably  worse 
than  yourself  And  society  demands  that  you 
protect  her,  and  heal  all  of  her  wounds. 

We  chance  to  have  lived  a  rich  experience  in 
this  matter.  When  the  courts  wherein  we  are 
practicing  were  re-opened  in  middle  Georgia,  after 
the  war,  it  was  idle  to  carry  any  case  of  a  negro 
before  a  jury  of  the  whites.  We  witnessed  such  an 
unbroken  succession  of  adverse  verdicts  against 
colored  litigants,  that,  as  Jefferson  did  over  slavery, 
we  trembled  for  our  people  when  we  reflected  that 
God  was  just,  and  that  his  justice  could  not  sleep 
forever.  But  the  bar  stood  faithfully  by  their  colored 
clients.  Even  the  lawyer  assigned  by  the  court  to 
defend  the  negro  pauper  did  his  duty  fearlessly,  and 
went  down  bravely  under  the  unjust  conviction. 
The  leading  members  of  the  bar  spoke  out,  unan- 
imously, on   all   occasions  permitting,  advising  the 


A     CASE     OFFERED.  67 

people  to  a  better  course.  At  last  this  persistence 
began  to  tell.  The  tide  turned  perceptibly  in  1870, 
and  after  a  while  it  was  no  wonder  to  see  a  negro 
get  full  justice  from  a  juiy  of  the  whites. 

In  war  the  post  of  danger  is  the  post  of  honor — 
in  the  practice  of  the  law  often  the  post  of  unpopu- 
larity is  the  post  of  honor.  The  weak,  the  defense- 
less, and  the  oppressed,  are  clients  that  you  must 
stand  by  to  the  death.  Whether  they  are  high  or 
low,  rich  or  poor  (for  unpopular  clients  come  from 
every  rank  of  society),  they  are  to  you  a  sacred 
charge:  You  are  to  effect  for  them  the  very  best 
possible.  If  you  must  conscientiously  advise  them 
— after  failing  to  obtain  any  amicable  adjustment 
such  as  we  have  mentioned — to  abandon  their  rights, 
by  reason  of  your  conviction  that  the  probable 
event  will  never  repay  the  cost  of  the  controversy, 
make  everything  clear  to  them.  And  if  they  still 
insist  upon  their  guarantied  right  of  appeal  to  the 
courts  of  justice,  you  have  no  choice.  Go  forward  ! 
You  struggle  not  alone  for  them.  Fear  not  to  be 
called  Quixotic.  The  brave  soldiers  who  fall  in  the 
forlorn  hope,  have  not  thrown  away  their  lives. 
You  fight  for  the  most  precious  interests  of  society. 
Grudge  not  the  toil,  labor  and  failure,  rewarded  as 
it  seems  with  only  present  obloquy.  It  is  the  sure 
earnest  of  the  everlasting  amelioration  of  our  race, 


68  CONDUCT    OF    LITIGATION. 

that  men  will  take  fire  and  imitate  actions  brave 
and  good.  Your  example  inspires  others.  The  true 
and  good  begin  to  organize.  When  their  organiza- 
tion is  complete,  no  power  of  injustice  opposed  can 
stand  against  them. 

We  contend  that  the  principles  which  we  have 
laid  down  in  this  chapter  should  govern  every  lawyer 
to  whom  a  case  is  offered,  whether  he  be  some  hard- 
working junior  first  consulted,  or  a  more  eminent 
counsel  retained  after  forensic  controversy  has 
beo'un. 

But,  says  the  young  lawyer,  how  can  I  ever  find 
out  all  about  a  case  as  you  direct  me  to  do ;  and  if 
I  do  find  out  all  of  the  facts  and  details,  how  shall  I 
ever  learn  what  to  do  with  them  }  how  can  I  under- 
stand what  case  they  make  ? 

We  say  to  him,  that  he  must  observe  and  imitate, 
for  a  while.  His  old  preceptor  will  always  rejoice 
to  give  him  instruction.  Some  young  brother  of 
the  bar,  a  little  older  in  the  law,  will  be  glad  to  play 
teacher.  And  our  jurisprudent  will,  also,  if  he  be  a 
born  gentleman,  make  many  friends  of  older 
lawyers,  who  will  help  him  with  good  counsel,  and 
prevent  him  from  making  a  fool  of  himself.  Let 
him  attend  trials,  noting  everything  most  carefully, 
and  reflecting  to  see  how  it  was  brought  about.  Let 
him  put  cases  to  his  companions,  and  argue  with 


PREPARA  riON.  6<i 

them.  Let  him  study  the  reports.  He  will, 
after  a  while,  become  capable  of  analyzing  cases 
for  himself. 


•JO  CONDUCT    OF    LITIGATION. 


CHAPTER     V. 

PRINCIPLES  OF  PREPARATION. PREPARATION  OF 

THE  EVIDENCE. 

We  shall,  in  this  and  the  chapters  immediately 
following,  treat  of  preparation  of  the  case  on  the  ev- 
idence and  preparation  on  the  law,  and  we  shall, 
after  a  while,  debate  the  proper  plan  of  an  attack  or 
defense. 

It  will  also  be  necessary  to  discuss  other  matters 
belonging  to  our  general  division  of  Conduct  out  of 
Court,  most  of  which  head  its  different  chapters. 

It  is  important  to  say  now,  however,  that  there  is 
no  such  serial  progress  in  the  real  preparation  of  a 
case.  The  parts  of  anything,  though  they  may  all  be 
co-existent,  must  be  looked  at  separately,  to  be  well 
understood.  And  we  only  look  at  these  different 
parts  of  preparation  serially,  in  order  to  present  the 
whole,  which  they  constitute,  more  intelligibly. 

When  a  case  is  presented,  there  comes,  almost  at 
once,  some  dim  conception  of  the  proper  plan  of 
conduct ;  there  is  some  immature  analysis  of  the 
questions  both  of  law  and  evidence,  arising,  and  all 
these    conceptions,  vague   though   they  may  be   at 


PREPARATION.  71 

first,  are  either  succeeded  by  others,  or  developed 
into  greater  clearness  and  distinctness.  And  though 
these  elements  in  their  growth  keep  an  even  pace 
with  each  other,  still  we  must,  as  already  said,  look 
at  each  one  separately,  and  in  some  sort,  inde- 
pendently. 

The  lawyer  having  decided  on  a  resort  to  litiga- 
tion for  his  client,  has  analyzed  the  case  clearly,  and 
decided  upon  his  forum  and  his  remedy.  If  he  has 
not  yet  discovered  all  the  material  questions,  of  law 
or  fact  that  he  can  discover  by  looking  from  his 
standpoint,  and  by  anticipating,  as  much  as  he  can, 
the  strength  and  intentions  of  the  adversary,  he  has 
divined,  at  least  enough  of  the  grounds  of  contro- 
versy to  begin  preparing  for  the  encounter. 

The  first  aim  of  an  intelligent  preparation  is  to 
assure  those  advantages  which  are  palpable  when  the 
case  is  taken.  Thus  the  client,  or  some  one  else,  tells 
you  that  a  witness  will  testify  so  and  so,  and  you  see 
that  the  testimony  as  represented,  is  material.  You 
should  never  rest  till  the  witness  is  brought  to  you, 
and  you  have  made,  either  by  yourself  or  your  associ- 
ate, a  copious  memorandum  of  the  narrative  to  which 
he  agrees.  This  will  be  of  great  profit  to  you  in  more 
than  one  respect.  It  will  guard  you  against  all  sur- 
prise. In  the  privacy  and  command  of  time  that 
you  have  in  your  conference,  you  will   sift  him  well 


72  CONDUCT    OF    LITIGATION. 

His  freedom  from  embarrassment  will  be  favorable 
You  will  often,  to  your  own  advantage,  correct  his 
errors.  Should  he  make  a  mistaken  statement  in 
public,  he  will  hardly  take  it  back ;  but  in  your  office 
you  can,  by  reasoning  with  him,  nearly  always  make 
him  retract  an  erroneous  assertion,  provided  he  has 
not  already  made  it  publicly.  And  you  may  ob- 
tain from  him  clues  to  other  material  evidence. 
Besides  instructing  yourself  accurately,  you  will 
find  it  a  great  advantage  to  commit  and  fasten 
him  to  his  narrative.  A  witness  often  is  waver- 
ing. Just  after  the  occurrence  witnessed,  he  is  full 
of  nothing  but  the  truth  of  the  fact,  though  revolving 
it  over  and  over  in  his  mind  subsequently,  may  lead, 
at  last,  to  a  material  modification  of  his  first  nar- 
rative. All  of  us  have  noticed  how  the  testimony 
of  good  men  is  shaped  and  colored,  unawares  to 
themselves,  by  their  associate  witnesses.  You  will 
sometimes  find  that  a  large  body  of  witnesses  who 
testify  to  the  same  facts,  repeat  many  of  the  particu- 
lar expressions  of  the  first  witness,  although  they 
may  have  been  excluded  from  court  during  his  ex- 
amination. This  is  because  they  have  talked  with 
each  other  over  the  matter,  and  each  one  nervously 
dreads  a  contradiction  by  the  other.  You  have, 
therefore,  many  reasons  to  be  in  haste  to  confirm 
and  make  sure  and  steadfast  your  slipperv  witness. 


PREPARATION.  73 

Get  from  him  the  whole  truth  and  nothincf  else; 
and  see  that  he  agrees  to  your  memorandum.  It  is 
often  well,  where  the  witness  is  of  infirm  qharacter, 
to  make  him  sign  the  minute  that  you  have  taken 
of  his  narrative. 

We  subjoin  a  passage  from  Mr.  Warren,  differ- 
ing much  from  the  advice  that  we  have  just  given. 
We  can  not  help  believing  that  had  the  author,  in- 
stead of  being  a  counsel  who  never  examines  wit- 
nesses out  of  court,  been  an  attorney  daily  sifting 
them  in  private,  he  never  would  have  written  so 
wide  of  the  mark.  The  reader  is  reminded  that 
Mr.  Sharpe  is  an  attorney : 

"  At  one  time  I  made  it  a  habit  to  take  out  ink 
and  paper,  and  reduce  at  once  to  writing  all  that 
my  witnesses  stated,  while  they  were  still  with 
me ;  sometimes  I  do  it  still ;  and  where  it  can  be 
effected  without  exciting  alarm,  it  is  a  useful  prac- 
tice ;  but  I  was  cured  of  it  as  a  habit  by  more  than 
one  instance  of  the  following  kind  : 

"'Bless  me,  Mr.  Sharpe,  what  are  you  doing 
there  ? ' 

" '  Only  making  a  minute  of  your  evidence  for 
counsel.' 

" '  Minute  of  my  evidence !    I  won't  agree  to  that* 

" '  Why  not  1  you  can't  think  that  I  can  remem- 
ber all  we  have  been  saying  ? ' 


74  CONDUCT    OF    LITIGATION. 

" '  I  can't  help  that ;  I  am  not  going  to  swear  in 
black  and  white ;  I  have  told  you  the  truth,  but 
I'm  not  going  to  be  taken  down.' 

" '  Will  you  write  it  yourself? ' 

"'No,  indeed!  I  may  have  made  a  thousand 
mistakes.     I'll  do  no  such  thing.' 

"  *  Come  now,  be  reasonable  ;  what  is  the  use  of 
your  telling  me  all  this  if  it  is  to  go  no  further? 
and  how  can  I  make  use  of  it  if  I  am  not  at  liberty 
to  take  notes  of  it  ?  ' 

" '  That's  your  affair,  not  mine ;  I  have  nothing 
to  do  with  it.  Give  me  that  paper  or  I'll  not  say 
another  word.' 

"  And  I  have  been  obliged  to  surrender  my  mem- 
orandums as  a  peace-offering,  to  secure  further  com- 
munication !  All  this  is  prodigiously  absurd  ;  but  it 
is  our  lot  to  deal  with  the  absurdities,  not  less  than 
with  the  passions  of  mankind." ' 

We  will  say  further,  in  contradiction  of  the 
above  passage,  that  we  have  reduced  to  writing 
the  statements  of  many  witnesses,  in  their  presence, 
and  we  never  had  one  make  any  objection.  Nor 
have  we  ever  had  a  witness  to  object  to  signing 
the  abstract  of  his  testimony  ;  save  now  and  then 
one   who  would  stipulate  as  the  condition   of   his 

'  Adventures  of  an  Attorney,  294  ei  seq.  (New  York,  1874.) 


PREPARA  TION.  75 

signing,  that  he  be  furnished  at  once  with  a  copy. 
Perhaps  some  attorney  giving  Mr.  Warren  a  brief 
in  a  case  which  he  had  not  got  up  on  the  evidence 
with  proper  precision,  in  paUiation  of  his  laziness, 
furnished  the  eminent  counsel  with  the  fiction  above 
quoted. 

We  suppose  that  every  careful  lawyer  can  recol- 
lect some  instance  in  his  own  practice,  when  he 
took  time  by  the  forelock,  and  obtained  from  an 
anticipated  witness  a  letter  stating  what  he  would 
testify,  before  any  warping  influence  had  begun  to 
work  on  him,  and  aftei-wards  saw  that  the  witness 
regretted  writing  that  in  which  he  poured  out  the 
truth  so  unrestrainedly. 

We  will  give  some  other  illustrations  of  assuring 
existing  advantages.  For  instance,  there  may  be 
obtained  a  preponderance  of  testimony  supporting  a 
material  point  of  the  case,  provided  a  witness  who 
resides  beyond  the  jurisdiction  of  ordinary  process 
be  examined  by  commission.  As  the  commission 
will  not  issue  of  itself,  the  party  desiring  it  must 
conform  to  whatever  the  local  law  prescribes,  in 
order  to  procure  the  testimony.  He  may,  in 
his  supineness,  neglect  to  sue  out  the  commission 
and  have  it  executed,  and  thus  he  will  throw  away 
one  of  his  advantages,  and  the  subsequent  trial  may 
show  that  he  lost  the  verdict  because  of  this  neglect. 


^6  CONDUCT    OF    LI  TIG  A  r ION. 

The  attendance  of  important  witnesses,  who 
are  accessible,  is  often  not  compelled.  The  court 
will  not  give  time,  when  at  the  trial  term  the  case  is 
reached,  to  do  that  which  should  have  been  done 
before ;  and  the  party  thus  unprovided,  must  suffer 
the  consequences  of  his  or  his  lawyer's  remissness. 

Again,  as  an  instance  of  assuring  existing  ad- 
vantages, a  material  witness  of  high  character,  and, 
it  may  be,  the  only  one  as  to  the  turning  point  of 
the  case,  may  be  afflicted  with  a  dangerous  disease, 
and  the  process  of  the  court  runs  not  into  the  other 
world,  to  which  he  may  have  gone  when  you  would 
have  his  testimony.  It  is  the  duty  of  the  lawyer,  so 
soon  as  he  discovers  the  materiality  of  the  witness 
and  his  ill  health,  to  perpetuate  his  testimony,  and 
thus  save  its  benefit  for  the  client.  It  may  protect 
the  family  of  the  client  after  he  and  the  witness,  and 
the  lawyer  who  procured  the  perpetuation,  are  all  in 
their  graves.  We  might  swell  this  illustration  by  in- 
stances collected  from  every  detail  of  preparation. 
But  we  have  given  enough  to  make  our  meaning 
plain.  We  insist,  as  we  leave  this  part  of  the  sub- 
ject, that  blunders  here  are  more  unpardonable  than 
anywhere  else  in  the  preparation  of  the  case.  For 
the  duty  is  so  plain  that  it  needs  must  be  seen.  In 
the  subsequent  investigation  additional  advantages 
may  escape  discovery,  in  spite  of  great  industry ;  but 


PREPARATION.  77 

if  the  lawyer  neglect  to  assure,  by  using  the  cheap 
and  easy  process  of  the  law  and  other  means  in  his 
powder,  the  advantages  palpable  to  a  practitioner  of 
average  ability  so  soon  as  the  case  is  presented,  the 
damage  resulting  to  his  client  will  be  fairly  charge- 
able to  his  negligence. 

The  second  object  of  an  intelligent  preparation  is 
to  obtain,  if  possible,  other  advantages.  Those 
discovered  at  the  first  should,  as  we  have  urged, 
\)e  at  once  made  sure  of,  and  then,  if  possible, 
cidditional  advantages  should  be  discovered  and  like- 
wise assured.  Preparation  as  it  goes  on  often  reveals 
sources  of  information  not  before  suspected ;  and  an 
examination  may  discover  important  testimony,  and 
whether  that  testimony  be  oral  or  documentary  it 
must  at  once  be  secured.  Thus  you  may  discover 
some  bias  warping  the  witnesses  against  you,  which, 
if  you  show  it  clearly  to  the  juiy,  may  unload  their 
formidable  testimony  of  all  its  weight.  Likewise 
vou  may  discover  that  a  grant  on  which  the  adver- 
sary relies  is  a  forgery,  or  that  a  deed  supporting  his 
case  is  void,  or  that  a  very  hostile  witness  has  given, 
in  the  hearing  of  credible  persons,  an  account  of  the 
transaction  contradicting  his  now  expected  narrative 
Time  does  not  serve  to  enumerate  instances  of  the 
advantages  that  may  be  discovered  and  added  to 
your  case  after   its   preparation    begins.     The   trial 


78  CONDUCT    OF    LITIGATION. 

itself — when  you  have  exhausted  and  drained  dry, 
with  indefatigable  industry,  as  you  believe,  every 
fountain  of  relevant  evidence — will  often  give  you 
hints  from  which  you  may  profit,  even  at  that  late 
hour,  to  the  strengthening  of  your  case. 

The  client  and  his  lawyer  should  always  be  on 
the  lookout  for  these  additional  advantages.  A 
wary  old  lawyer  told  us  that  he  had  once  great  need 
to  ascertain  what  counsel  drew  an  instrument  which 
was  then  the  subject-matter  of  much  litigation,  the 
instrument  being  attacked.  He  had  used  all  the  in- 
formation of  his  client,  and  had  searched  and  in- 
quired wherever  he  thought  it  at  all  probable  that  he 
could  learn  anything  about  the  instrument ;  but  fail- 
ing so  often,  and  thinking  of  no  other  possible  chance, 
he  had  given  up  in  despair.  Soon  afterwards,  being 
engaged  as  counsel  in  the  trial  of  a  case  in  a  distant 
county  which  he  had  never  before  visited,  while 
listening  to  a  witness  under  examination  by  the 
other  side,  he  heard  some  one  behind  him  mention 
the  instrument.  He  pricked  up  his  ears,  and  the 
talker  went  on  to  say  that  the  first  money  he  had 

ever    made    was    by   copying    it    for ,     an 

eminent  counsel  of  whom  our  friend  had  heard 
much,  but  whom  he  did  not  know.  The  secret  was 
thus  casually  discovered ;  and  upon  corresponding 
with  the  draughtsman  his  testimony  was  found,  as 


PREP  A  RA  TION.  79 

anticipated,  most  material.  Our  friend  confessed 
that  after  he  had  thus  found  out  what  he  had  so 
long  desired,  nothing  seemed  more  natural  than  that 
the  instrument  should  have  been  drawn  by  this  very 
counsel ;  and  that  had  he  rightly  reasoned  from  his 
information,  there  would  never  have  been  any  need 
for  his  long  search. 

A  mine  of  facts  often  prove  inexhaustible  for  a 
great  while.  Note  some  contested  question  in 
history — how  centuries  will  pass  away  before  it  is 
settled.  Many  of  the  details  therewith  connected 
are  hidden,  and  it  takes  a  long  time  to  discover  all 
of  them.  Some  of  them,  too,  though  known  in  a 
measure,  have  never  been  rightly  understood. 
So  often  with  the  facts  of  a  case.  Your  vigilance 
should  never  end.  Strive  to  learn  more  and  more. 
Scour  every  possible  nook  and  corner  where  evidence 
may  be  lying  concealed,  and  often  you  will  make 
favorable  developments  which  will  astound  your 
client. 

The  third  object  of  preparation  is  (anticipating 
his  case,  as  will  be  fully  explained  hereafter)  to  crip- 
ple your  adversary  and  abridge  his  advantages  as 
much  as  possible.  Thus,  there  may  be  strong  popu- 
lar feeling  prevalent  against  a  client,  charged  with 
some  great  crime,  and  if  you  can  procure  a  contin- 
uance, the  passionate  prejudice  giving  the  common- 


8o  CONDUCr    OF    LITIGATION. 

wealth  the  superiority  may  subside  before  the  trial. 
Ag?in,  you  may  be  aware  of  overwhelming  evidence 
against  you  but  the  adversary  has  not  discovered  it. 
You  may,  by  management,  conceal  it  effectually,  or 
you  may  force  a  trial  at  once,  and  he  may  in  neither 
case  ever  discover  it.  A  dexterous  use  of  some  un- 
expected remedy  is  often  very  embarrassing  to  an 
adversary.  Procuring  an  injunction  or  the  appoint- 
ment of  a  receiver,  or  taking  a  sudden  aggressive 
when  your  opponent  thinks  that  he  has  you  on  the 
defensive — all  these  and  more  such  stratagems,  serve 
the  lawyer  who  is  the  master  of  practice  under  the 
local  law. 

The  following  is  an  example  of  neglecting  an 
opportunity  to  cripple  the  adversary:  A  statute  per- 
mitting parties  to  testify,  made  an  exception  where 
one  of  the  parties  to  the  contract  was  dead,  and  this 
was  held  to  exclude  the  living  one  only  when  the 
estate  of  the  dead  party  could  be  affected  directly  by 
the  judgment  In  an  action  of  ejectment,  where  the 
plaintiff  was  re-entering  for  condition  broken,  he 
could  only  prove  the  breach  by  himself.  The  de- 
fendant had  purchased  from  one  deriving  title  from 
the  plaintiff.  The  party  to  whom  the  plaintiff  had 
conveyed  on  condition  was  dead,  and  had  his  repre- 
sentative been  vouched  by  the  defendant  as  a  co- 
warrantor,  and  made  a  party,  the  plaintiff  would  not 


PRE  PARA  TION.  8i 

have  been  a  competent  witness  under  the  local  ad- 
judications to  prove  the  breach,  as  the  judgment 
would  then  affect  the  estate  of  the  dead  party.  Ne- 
glecting to  vouch  the  representative  of  this  warrant- 
or lost  the  defendant  his  case. 

We  have  now  enumerated  and  briefly  treated  the 
three  general  objects  of  preparation.  The  reader, 
from  his  own  experience  or  ingenuity,  will  supply 
many  more  instances  than  those  which  we  have 
given  illustrating  each  one  of  the  three  divisions. 

The  lawyer  preparing  a  case  has  three  questions 
to  ask  himself:  (i)  What  advantages  now  appear 
to  belong  to  my  case ;  and  how  can  I  secure  them 
at  once  }  (2)  what  other  advantages  can  I  discover 
and  gain  ?  (3)  how  can  I  cripple  my  adversary  by 
cutting  him  off"  from  some  or  all  of  his  apparent  ad- 
vantages 1 

There  is  a  caution  to  be  given  appropriately  here. 
The  lawyer,  if  he  is  careless  in  his  preparation,  will 
often,  by  his  blunders,  seriously  injure  his  case.  His 
own  evidence  will  be  turned  against  him  v/ith  dam- 
aging effect.  He  must  avoid  conflicts  and  contra- 
dictions and  support  of  the  adversary  in  his  own 
positions  or  evidence. 

The  author  will  give  two  instances  where  a  party 
injured  his  case  by  his  own  evidence  more  than  he 
did  that  of  his  adversary. 


82  CONDUCT    OF    LITIGATION. 

The  first  was  on  a  caveat  to  a  will  propounded 
for  probate,  where  the  issue  was  whetl  r  the  wit- 
nesses signed  in  the  presence  of  the  testator.  There 
was  no  doubt  that  he  and  all  oi  the  witnesses  were 
present  when  the  execution  of  the  paper  com- 
menced, but  the  caveators  contended  that  he  had 
left  the  room  before  the  attestation  by  the  witnesses. 
The  recollection  of  the  subscribing  witnesses  was 
not  clear,  and  the  court  held,  that  by  reason  of  their 
testimony  there  was  a  prima  facie  presumption  of 
due  execution.  To  rebut  this  presumption  the  cav- 
eators read  the  testimony  of  two  other  witnesses, 
which  had  been  taken  by  commission.  These  two 
women  were  in  the  room  at  some  time  during  the 
execution  of  the  paper,  and  both  of  them  testified 
positively  that  the  testator  went  out  of  the  room 
with  themselves  before  the  witnesses  had  signed. 
This  testimony  seemed  to  overwhelm  the  propound- 
e^s  ;  but  when  it  was  criticised,  it  was  shown  that  in 
every  other  particular  save  that  they  carried  the  tes- 
tator away  before  the  witnesses  had  signed,  these 
two  were  in  irreconcilable  conflict  with  each  other 
They  conflicted  first  as  to  the  order  of  entering  the 
room.  One  said  that  the  testator  accompanied  her 
and  the  other  witness  to  the  room.  The  other  said 
that  the  testator  was  in  the  room  when  they  came, 
and  that  she  did  not  know  whence  he  came.      Next 


PRE  PARA  TION.  83 

th--y  disagreed  as  to  the  order  of  leaving.  One  said 
that  the  testator  went  out  with  both,  and  at  her 
side ;  the  other  said  that  he  came  behind  them. 
Then  th.c)  disagreed  again.  According  to  one  of 
them  the  two  went  out  into  the  hall  and  passed  up 
to  the  door  of  the  sitting-room,  where  they  stopped ; 
th(  other  carried  the  whole  party  into  the  sitting- 
room.  Again :  each  one  of  the  witnesses  was  at 
variance  with  the  weight  of  the  testimony ;  in  many 
instances  trivial  variations,  to  be  sure,  but  of  great 
importance  as  testing  the  accuracy  of  the  witnesses' 
memories.  The  paper,  at  the  time  of  its  execution, 
was  not  known  by  the  subscribing  witnesses  nor 
these  women  to  be  a  will,  and  none  of  them  pre- 
tended to  have  observed  the  details  closdy.  Many 
years  had  elapsed  since  its  execution.  The  jury 
could  not  trust  the  memories  of  the  women  as  to 
the  particular  facts  where  they  agreed,  as  they  found 
their  memories 'in  conflict  in  so  many  other  particu- 
lars.    They  found  a  verdict  setting  up  the  will. 

Now,  had  the  counsel  for  the  caveators  done  his 
duty,  in  carefully  sifting  both  of  these  women  before 
taking  their  testimony,  he  would  have  discovered 
these  conflicts.  His  course  then  was  plain.  He 
would  have  got  a  commission  for  and  examined  only 
one — selecting  that  particular  one  of  the  two  who 
had  no  seeming  interest  in  the  result. 


84  CONDUCT    OF    LITIGATION. 

The  other  illustration  occurred  in  the  trial  of  an 
action  which  a  local  statute  permitted  to  be  brought 
by  the  heirs- at  law  against  the  administrators  of  the 
intestate  and  the  sureties  of  the  administrators,  at 
once,  without  any  preyious  establishment  of  waste. 
The  defense  was  the  general  issue,  denying  every 
part  and  parcel  of  the  large  waste  alleged  by  the 
plaintiff.  An  able  counsel  for  the  defense,  who 
specially  represented  the  sureties,  put  in  a  volumin- 
ous transcript  of  documentary  evidence  by  which  he 
seemed  to  set  great  store.  The  reading  of  this  tran- 
script in  evidence  was  waived  by  consent.  We  shall 
never  forget  his  discomposure  when  the  opposing 
counsel,  in  his  argument,  showed  that  this  transcript, 
among  other  things,  contained  proceedings  taken 
some  years  before  by  these  very  sureties  against 
these  same  administrators,  and  the  appointment  of 
a  receiver  thereupon, "to  take  possession  of  the  assets 
of  the  intestate's  estate,  by  the  present  counsel  of  the 
sureties,  who  was  at  that  time  a  judge.  The  sureties 
obtained  the  appointment  of  this  receiver  by  com- 
plaining of  the  same  waste  which  they  now  denied. 
Of  course  this  evidence  should  have  been  omitted,  as 
there  was  nothing  else  in  the  entire  transcript  to  com- 
pensate for  its  damaging  effect  with  the  jury.  It 
gave  the  counsel  for  the  plaintiff  a  great  moral  ad- 
vantage which  perceptibly  cowed  his  able  adversary. 


PREPARATION.  8?; 

The  only  sure  preventive  of  such  self-caused  in 
juries  is  a  careful  contemplation  and  study  of  all  the 
details  of  the  case  during  its  preparation.  Not  only 
should  every  parcel  of  the  evidence  be  studied  and 
construed  as  if  detached  from  the  rest,  but  its  effect 
on  the  whole  of  the  other  evidence  must  be  mas- 
tered. And  this  must  be  done  before  the  evidence 
is  made  accessible  to  the  other  party.  It  is  disgrace- 
ful stupidity  or  criminal  negligence  to  arm  your  ad- 
versary with  your  own  preparation. 

We  have  before  said  that  the  case  of  the  other 
side  is,  if  possible,  to  be  divined  and  prepared 
against.  You  must,  if  you  can,  make  your  adversary 
disclose  his  hand,  using,  however,  no  discreditable 
artifices  or  tricks.  A  lawyer  is  not  to  stand  eaves- 
dropping or  listening  at  key-holes ;  but  there  are 
many  ways  of  acquiring  a  knowledge,  more  or  less 
accurate,  of  the  doings  and  designs  of  your  opponent. 
Other  testimony,  both  oral  and  written,  is  disclosed 
in  investigating  the  case,  and  seen  that  it  will  prob- 
ably be  used  by  him.  It  is  not  women  only  who 
are  unsecret.  Generally,  men  engaged  in  any 
controversy  which  involves  much  feeling,  as  litiga- 
tion usually  does,  are  tempted  to  predict  success  for 
themselves,  and  in  their  vanity  will  seek  to  demon- 
strate to  their  hearers  by  what  evidence  and  by 
what  legal  principles  they  expect  to  win.     Lawvers 


86  CONDUCT    OF    LITIGATION. 

themselves  as  a  class  are  too  communicative  of  their 
cases.  Cases  that  turn  on  disputed  facts  usually 
divide  witnesses  into  parties  who  talk  and  argue 
with  each  other.  To  profit  by  this,  you  should 
take  your  coolest-headed  witness  and  procure  him 
to  give  an  accurate  report  of  what  the  opposite  wit- 
nesses say  that  they  will  swear.  We  have  known 
this  stratagem  succeed  more  than  once.  Witnesses 
become  partisans.  It  does  really  seem  that  many  of 
them  feel  bound  to  give  their  good  wishes  wholly 
to  that  party  who  has  subpoenaed  them.  They  will 
oiten  go  great  lengths  to  serve  their  friends.  Amid 
a  considerable  number,  there  will  always  be  one  of 
fitness  for  this  service  of  giving  you  a  faithful  report 
of  the  testimony  that  you  may  expect  from  the 
other  side.  And  you  will  often  find  that,  when  you 
have  had  time  to  reflect  over  it,  much  of  its  formid- 
able character  can  be  removed  by  a  cross-examina- 
tion, which  you  can  judiciously  plan  at  your  leisure, 
or  that  you  can  easily  provide  counter-testimony  to 
overwhelm  it. 

The  pleadings  of  the  other  side — his  movements 
in  his  case,  such  as  applying  for  subpoenas,  commis- 
sions to  examine  witnesses,  orders,  &c.,  should  be 
carefully  observed  and  thought  over.  They  will 
often  lead  you  into  secrets  which  the  adversary 
would  have  gladly  kept  entirely  to  himself. 


PREPARA  TION.  87 

And  you  should  always  be  meditating  if  there 
is  any  remedy  or  move  open  to  you  by  which  you 
can  force  a  disclosure  of  the  other  side.  There  are 
correspondences  in  litigation  to  the  armed  recon- 
noisance  in  warfare.  Thus,  by  a  motion  to  dissolve 
an  injunction,  upon  an  answer  that  swears  off  the 
equity  of  the  bill,  you  may  drive  the  complainant 
into  supporting  by  affidavits,  which  will  accurately 
inform  you  of  much  of  his  expected  testimony. 

Again  :  you  may  be  defending  one  charged  with 
a  crime  and  arrested  on  a  warrant  before  indictment 
found,  and  by  refusing  to  give  bail  at  once  and 
waive  a  preliminary  hearing,  as  the  local  law 
often  allows,  you  may,  by  a  stout  contest  before  the 
magistrates,  draw  out  the  whole  case  of  the  state, 
holding  your  own  back  if  you  choose. 

This  is  not  the  place  to  write  a  treatise  on  the 
law  of  procedure.  We  will  only  say,  that  the  local 
law  everywhere  gives  to  the  practitioner  remedies 
which  he  v\iill  often  use  wisely,  for  no  other  purpose 
than  to  reconnoiter  or  feel  of  his  adversary. 

We  must  not  forget  to  say  that  no  professional 
man  in  America  has  so  many  warm  personal  friends 
as  the  lawyer.  They  do  themselves  a  pleasure  in 
giving  their  favorite  all  the  information  possible  in 
his  cases,  often  doing  for  him  what  they  would  not 
do  for  the  client. 


88       -         CONDUCT    OF    LITIGATION. 

And  thus  the  secrets  of  almost  every  case  come 
out  before  the  trial.  At  least  they  are  revealed  to 
those  who  know  how  to  listen  for  them.  And  as 
they  come  out  part  by  part,  dispersed  here  and 
there  in  different  places,  it  may  be  over  a  large 
neighborhood,  it  is  the  duty  of  the  lawyer  on  the 
other  side  to  collect  these  scattered  fragments,  and 
putting  them  properly  together,  learn  what  mischief 
IS  plotting  against  him. 

This  is  the  place  to  caution  you  against  talking 
to  your  client  too  freely.  You  need  not  tell  him 
your  plan  and  anticipations,  even  when  you  have 
him  executing  the  one  and  providing  against  the 
other.  He  is  often  leaky  and  unsecret.  In  litigation 
secrecy  is  of  as  much  avail  as  it  is  in  the  project 
and  movements  of  a  campaign.  Let  your  knowl- 
edge of  human  nature  and  what  you  deem  the  true 
interests  of  the  case  govern  you  as  to  making  a  full 
confidant  of  the  client. 

The  wary  lawyer  will  guard  as  much  as  possible 
against  the  escape  of  his  own  secrets.  When  he 
wishes  to  conceal  his  strength  he  needs  to  be  very 
ingenious  to  succeed.  His  witnesses  he  had  better 
talk  with  separately,  and  out  of  the  hearing  of  his 
client,  if  the  latter  be  imprudent.  If  he  discovers 
that  the  adversary  has  laid  a  trap  to  catch  some  of 
his   secrets,   he    should    dupe    him.      The    laws    of 


PREPARATION  89 

civilized  warfare,  though  demanding-  of  both  com- 
batants the  strictest  regard  for  all  the  requirements 
of  sound  morality,  permit  to  both  the  use  of  honor- 
able stratagem.  No  faith  must  be  violated.  A 
stratagem  succeeding  must  not  have  shocked  the 
moral  sense — it  should  only  deceive  the  head  of  the 
enemy.  Where  the  trust  of  the  adversary  is  in- 
vited, as,  for  instance,  where  a  composition  or  all 
accord  is  proposed,  the  utmost  truthfulness  must 
characterize  all  communications.  Bat  when  he 
chooses  to  scrutinize  your  actions  with  a  view  to 
divine  your  purposes,  you  are  under  no  moral 
obligation  to  help  him  discover  what  it  is  your 
interest,  right,  and  often  duty,  to  conceal ;  and  he 
can  not  complain  justly  if  you  by  actions  mislead 
him.  He  can  not  force  his  credulity  into  your 
keeping  as  his  trustee.  One  of  the  objects  of  strat- 
agem is  to  mask  your  purpose,  whether  it  -  be 
attack  or  defense.  The  pleadings,  even  when  most 
accurately  and  technically  drawn,  hardly  ever  ad- 
vertise the  other  party  of  more  than  the  general 
nature  of  the  defense  or  attack  preparing.  The 
plan  of  either  side  must  be  looked  for  elsewhere. 
Your  adversary,  if  vigilant,  will  have  both  scouts 
and  spies  in  his  pay,  and  you  are  at  liberty,  as 
we  have  said,  to  befool  him  by  any  ruse  which 
is  not   a  breach  of  honor.     You  can  conceal   fron? 


90  CONDUCT    OF    LITIGATION. 

the  witnesses  whom  you  sift  in  your  office  the 
points  to  which  you  are  really  examining  them,  by 
questioning  with  apparent  interest  about  many 
other  things.  You  can  conceal  your  real  plan  from 
your  client,  and  if  then  your  adversary  chooses 
to  entrap  these  people  into  detailing  to  his  spies 
what  they  suppose  to  be  your  purpose,  and  then  to 
shape  his  course  against  what  he  has  mistakenly 
conceived  to  be  your  case,  he  can  ascribe  his  con- 
sequent disaster  only  to  himself.  He  trusted  his 
own  judgment  and  it  deceived  him.  Stratagems  are 
double-edged  tools,  and  are  to  be  handled  carefully. 
Beware  that  you  are  not  caught  by  those  of  the 
opposite  side,  and  that  you  do  not  yourself  fall  into 
the  pits  that  you  dig  for  others. 

In  leaving  this  part  of  the  subject  we  must 
remind  "  our  jurisprudent  "  that  the  law  is  the  great 
guide  to  the  lawyer  in  the  preparation  of  his  cases, 
even  in  the  matter  of  evidence.  He  finds  it  neces- 
sary, it  may  be,  to  prove  the  death  of  some  particular 
man — he  has  no  witness  to  testify  to  the  fact 
desired,  but  the  law  permits  him  to  raise  the  pre- 
sumption of  death,  by  showing  an  absence  of  the 
person  in  question  for  a  certain  number  of  years. 
The  law  also  prescribes  rules  for  weighing  evidence  ; 
thus  positive,  other  things  being  equal,  will  over- 
come   negative ;    a    disinterested   witness    is    more 


PREPARATION.  91 

credible  than  another  to  the  same  fact  who  evinces 
an  evident  leaning  to  one  of  the  parties.  It  is  not 
our  object,  as  we  have  said,  to  write  a  lawbook. 
We  must  necessarily  take  it  for  granted  that  the 
lawyer  whom  we  address  knows  much  of  the  law ; 
and  it  is  earnestly  insisted  that  even  in  seeking  after 
superiorities  of  evidence,  his  Phillips  and  his 
Greenleaf,  reinforced  by  the  reports  in  his  library, 
must  be  constantly  looked  to  for  guidance.  It  is 
true  that  the  law  of  evidence  grows  more  and  more 
liberal,  and  assimilates  itself  year  by  year  to  that 
logic  which,  according  to  the  title-page  of  John 
Stuart  Mill,  contains  "the  principles  of  evidence 
and  the  methods  of  scientific  investigation."  Disabil- 
ities and  incapacities  are  removed  which  the  centu- 
riest  before  us  worshiped,  deluded  into  believing 
such  suppressors  to  be  the  guardians  of  truth.  We 
have  in  our  own  day  seen  millions  of  blacks  made 
competent  witnesses  in  all  kinds  of  ca;;es.  Still 
the  law  is  not  yet  ready  to  surrender  her  authority 
over  evidence,  and,  unfortunately,  a  legal  argument 
can  often  yet  be  made  from  facts  perverted  and 
garbled  by  the  law,  which  is  not  a  logical  argument. 
So  much  for  the  particular  subject  of  this  chap- 
ter. The  lawyer  should  prepare  with  u.ifl'^gging 
industry.  As  we  have  already  suggested,  \{  ofLei? 
requires,  after  the   case   appears  prima  facie  to   b(* 


92  •     CONDUCT    OF    LITIGATION. 

maintainable,  great  labor  to  find  out  all  of  the  tes- 
timony. You  will  be  led  to  more  and  more  of  it  by 
probing-  the  witnesses,  your  elient,  the  documents, 
and  all  sources  of  information.  All  of  us  have 
noted  the  shrewdness  with  which  veteran  lawyers 
guess  at  the  existence  of  testimony.  Spare  no  pains 
nor  toil  to  be  master  of  all  of  it.  Nothing  mate- 
terial-,  whether  apparent  at  the  first,  or  discovered 
afterwards,  should  be  thrown  away.  An  advantage, 
light  and  trivial  in  itself,  may  turn  the  scale.  Re- 
member the  maxim  of  Napoleon :  "  When  you 
have  resolved  to  fight  a  battle  collect  your  whole 
force.  Dispense  with  nothing.  A  single  battalion 
sometimes  decides  the  day."  Mr.  Warren  gives 
advice  similar:  "Always  <?z/<?r-prove  rather  than 
undcr-'i^xoNt  your  case.  By  this  I  mean  that  when 
you  have  got  so  far  in  a  cause  as  to  the  point 
of  trial,  you  should  not  peril  all  that  you  have 
already  expended,  and  damage  your  client's  interests 
and  your  own  reputation  by  niggard  considerations 
of  expense  in  providing  proofs  of  your  case.  Five 
or  six  pounds  may,  as  it  were,  insure  you  against 
defeat,  by  excluding  all  fair  chance  of  deficient 
proof.  It  is  much  better  to  have  secured  a  verdict, 
burdened  with  the  cost  of  a  superfluous  witness,  but 
whose  testimony  might,  in  some  turn  of  the  cause, 
Lave  been  indispensable,  than  to  have  lost  a  verdict 


PREPARATION.  93 

which  you  would  have  infallibly  gained  if  you  had 
not  chosen  to  run  so  near  the  wind  and  neglected  to 
come  provided  with  proof  which  might  not  have 
increased  your  costs  a  couple  of  pounds — those 
even  having  to  be  paid  by  your  opponent.  There 
have  been  very  many  cases  in  which  a  party  has 
struck  at  the  trial,  especially  at  the  assizes,  on 
seeing  his  adversary  come  pre^'^ared  with  such  super- 
abundant proof  as  excluded  all  chance  of  a  break- 
down." ' 

'  Duties  of  Attorneys,  181,  et  seq. 


9^  CONDUCT    OF    LITIGATION. 


CHAPTER  VI. 

PREPARATION    ON    THE    LAW    OF    THE    CASE. 

We  can  not  make  ourselves  clear  to  the  wholly 
uninitiated.  A  young  man  must  have  observed  the 
business  of  the  courts  for  a  while  before  he  can  un- 
derstand us  at  all.  And  it  is  by  observation  and 
then  imitation  that  we  begin  to  learn  at  the  first, 
and  afterwards  we  learn  much  in  the  same  way. 
Manners,  etiquette,  command  of  inferiors,  and 
many  other  things,  are  mysteries  that  can  only  be 
htlly  learned  after  a  season  of  observation  and  trials 
at  their  attainment. 

And  almost  the  first  remark  of  the  novice  who 
has  frequented  the  courts  for  some  months  as  an 
assiduous  student,  is  that  the  lawyers  in  the  court- 
room differ  far  more  greatly  as  to  facts  than  they  do 
as  to  the  law.  And  he  next  sebs  that  when  they 
dispute  as  to  the  law,  it  is  more  often  as  to  the 
proper  application  of  some  legal  rule  than  as  to  the 
existence  of  any  such  rule.  The  :aw  slowly  be- 
comes more  and  more  certain.  The  great  digests 
and  commentaries,  the  repeated  revisions  and  codifi- 


PRE  PAR  A  TION.  9^ 

cutions.and  tbe  growth  and  widening  sway  of  a  true 
science  of  juris]  udencc,  are  all  systematizing  the 
law  into  a  harmonious  whole.  Much  remains  yet  to 
be  done.  But  no  careful  thi.iker  and  OL/server  can 
compare  the  present  law  of  many  of  the  states  with 
that'  which  existed  half  a  century  ago,  without  seeing 
\}  't  nearly  ilie  whole  body  of  tl  ;  laws  usually  ad- 
ministered in  the  every-day  business  of  society,  is 
now  become  both  easier  to  find,  easier  to  understand, 
and  easier  to  apply.  The  tyro,  from  the  codes  and  the 
revised  statutes,  will  answer  unerringly  many  a  query 
which,  years  ago,  would  have  puzzled  the  ablest  and 
wisest  lawyers.  The  long  arguments  of  these  days 
are  in  the  discussion  of  facts  and  details  of  the  case. 
The  treatment  of  purely  law  questions  is  usually 
short — shorter  now  than  it  was  formerly.  To  the 
uninitiated,  it  would  appear  that  to  a  lawyer,  the  law 
of  the  case  is  by  far  the  more  important  part  of  the 
preparation.  But  experience  teaches  that,  Vv^hile  the 
lawyer  must  well  know  that  law,  which  is  of  famil- 
iar application,  his  great  business  in  his  cases  is  gen- 
erally with  the  facts  and  not  with  the  law.  He  is 
every  day  becoming  older  in  the  law,  but  every  case 
presents  a  novelty  of  its  own.  A  legal  question  will 
be  decided  by  old  law,  with  which  he  becomes  better 
and  better  acquainted,  while  every  question  of  fact 
arising  is  to  be  settled  by  proof  ever  new,  and  which 


96  CONDUCT    OF    LITIGATION. 

he  must  always  study  as  he  meets  with  it,  to  under- 
stand. It  may  serve  to  bring  out  more  clearly  the 
contrast  of  law  growing  older  year  by  year  to  the 
lawyer,  and  facts  forever  springing  up  freshly  around 
him,  to  state  that  he  is  to  satisfy  the  court  as  to  the 
former  by  the  use,  day  after  day,  of  the  same  books 
and  principles  which  at  last  become  a  lesson  learned 
by  heart,  but  to  decide  the  latter,  he  has  witnesses 
and  documents  in  every  case  to  deal  with,  that  he 
never  heard  of  before,  each  one  of  which  must  always 
be  investigated  for  and  by  itself. 

What  we  have  said  in  the  last  paragraph  is  true 
m  the  main  and  average  of  cases.  But  every  now 
and  then  some  lawyer  gains  an  unexpected  victory 
by  showing  that  some  generally  received  notion  is 
not  law.  One  of  the  most  famous  of  such  exploits 
was  the  success  of  Scott  (afterwards  Lord  Eldon)  in 
Akroyd  v.  Smithson.  We  will  copy  from  Lord 
Campbell  what  he  himself  copies  from  Twiss.  Lord 
Eldon  tells  the  story  to  Mr.  Farrer. 

"  Come,  help  yourself  to  a  glass  of  Newcastle 
port,  and  give  me  a  little.  You  must  know  that  the 
testator  in  that  cause  had  directed  his  real  estates  to 
be  sold,  and,  after  paying  his  debts  and  funeral  and 
testamentary  expenses,  the  residue  of  the  money  to 
be  divided  into  fifteen  parts — which  he  gave  to  fif- 
teen persons  v^bom  he  named  in  his  will.     One  of 


PREP  A  RA  TION.  97 

those  persons  died  in  the  testator's  lifetime.  A  bill 
was  filed  by  the  next  of  kin  claiming,  amongst  other 
things,  the  lapsed  share.  A  brief  was  given  me  to 
consent  for  the  heir-at-law  upon  the  hearing  of  the 
cause.  I  had  nothing  to  do  but  to  pore  over  this 
brief.  I  went  through  all  the  cases  in  the  books  and 
satisfied  myself  that  the  lapsed  share  was  to  be  con- 
sidered as  real  estate,  and  belonged  to  my  client  (the 
heir-at-iav/).  The  cause  came  on  at  the  Rolls,  before 
Sir  Thomas  Sewell.  I  told  the  solicitor  who  sent 
rae  the  brief  that  I  should  consent  for  the  heir-at-law 
so  far  as  regarded  the  due  execution  of  the  will,  but 
that  I  must  support  the  title  of  the  heir  to  the  one- 
fifteenth  which  had  lapsed.  Accordingly,  I  did  argue 
it,  and  went  through  all  the  authorities.  When  Sir 
Thomas  Sewell  went  out  of  court,  he  asked  the 
Register  who  that  young  man  was  ?  The  Register 
told  him  it  was  Mr.  Scott.  '  He  has  argued  very  well, 
said  Sir  Thomas  Sewell, '  but  I  can  not  agree  with 
him.'  This  the  Register  told  me.  He  decreed 
against  my  client.  The  cause  having  been  carried, 
by  appeal,  to  the  Lord  Chancellor  Thurlow,  a 
guinea  brief  was  again  brought  to  me  to  consent,  I 
told  my  client  if  he  meant  by  '  consent '  to  give  up 
the  claim  of  the  heir  to  the  lapsed  share,  he  must 
take  his  brief  elsewhere,  for  I  would  not  hold  it  with- 
out arguing  that  point.  He  said  something  about 
7 


98  CONDUCT    OF    LITIGATION. 

young  men  being  obstinate,  but  that  I  must  do  as  \ 
thought  right.     You  see  the  lucky  thing  wcs  there 
being  two  other  parties,  and  the  disappointed  one  not 
being  content,  there  was  an  appeal  to  Lord  Thur- 
LOW.     In  the  meanwhile,  they   had  written  to  Mr 
Johnston,  recorder  of  York,  guardian  to  the  young 
iicir-at-law,  and  a  clever  man,  but  his  answer  was 
Do  not  send  good  money  after  bad ;  let  Mr.  Scott 
have  a  guinea  to  give  consent  ;  and  if  he  will  argue, 
why  let  him  do  so,  but  give  him  no  more.'     So  I  went 
into  court,  and  when  Lord  Thurlow  asked  who  was 
to   appear  for  the  heir-at-law,  I  rose  and  said  mod- 
estly '  that  I  was  ;  and  as  I  could  not  but  think  (with 
much  deference  to  the  Master  of  the   Rolls,  for   I 
might  be  wrong)  that  my  client  had  the  right  to  the 
property,  if  his  Lordship  would  give   me  leave,   I 
would  argue   it'     It  was  rather  arduous  for  me  to 
rise  against  all  the  eminent  counsel.     I  do  not  say 
that  their  opifiions  were   against  me,  but  that  they 
were  employed  against  me.     However,  I  argued  that 
the  testator  had  ordered  this  fifteenth  share  of  the 
property  to  be  converted  into  personal  property  for 
the   benefit  of  one  particular  individual,   and   that 
therefore  he  never  contemplated  its  coming  into  pos- 
session of  either  the  next  of  kin  or  the  residuary 
legatee :  but  being  land  at  the  death  of  the  individual 
it  came  to  the  heir-at-law.     Well,  Thurlow   took 


PREPARATION.  eg 

three  days  to  consider,  and  then  dcHvercd  his  judg- 
ini^nt  in  accordance  with  my  speech ;  and  that 
speech  is  in  print,  and  has  decided  all  similar  ques- 
tions ever  since.  As  I  left  the  Hall,  a  respectable 
solicitor  of  the  name  of  Forster  came  up  and 
touched  me  on  the  shoulder  and  said, '  Young  man, 
your  bread  and  butter  is  cut  for  life,'  or,  '  You  have 
cut  your  bread  and  butter.'  But  the  story  of  A /^roj'd 
M.Smithson,  does  not  stop  there.  .  In  the  Chancellor's 
Court  of  Lancaster,  where  Dunning  (Lord  Ash- 
B'jrton)  was  Chancellor,  a  brief  was  given  me  in  a 
cause  in  which  the  interest  of  my  client  would  oblige 
me  to  support  by  argument  the  reverse  of  that  which 
had  been  decided  by  the  decree  \w  Akroyd  n.  Smith' 
son.  When  I  had  stated  to  the  court  the  point  I 
was  going  to  argue,  Dunning  said, '  Sit  down,  young 
man.'  As  I  did  not  immediately  comply,  he  re- 
peated, '  Sit  down,  sir  ;  I  won't  hear  you.'  I  then  sat 
down.  Dunning  said,  '  I  believe  your  name  is  Scott, 
sr,'  I  said  it  was.  Upon  which,  Dunning  went 
on  : — '  Mr.  Scott,  did  not  )^ou  argue  that  case  of 
Akroyd  v.  Smithsoji}'  I  said  that  I  did  argue  it 
Dunning  then  said, '  Mr.  Scott,  I  have  read  your  ar- 
gument in  that  case  of  Akroyd  v.  Sviithso7t,  diWd  I 
defy  you  or  any  man  in  England  to  answer  it.  I 
won't  hear  you.' " 

As  this  case  made  the  fortune   of  Scott,  so  did 


lOO  CONDUCT    OF    LITIGATION. 

Erskine  likewise  make  his  fortune  in  his  first  effort, 
by  a  brilHant  speech  on  a  question  argued  bef(jre  the 
court.     But,  as  we  have  said,  such  cases  are  rare. 

Still  the  law  must  be  attended  to  in  the  prepara- 
tion of  the  case.  If  for  the  plaintiff  you  draw  a 
declaration  which  the  defendant  may  admit  to  be 
wholly  true,  and  yet  he  can  demonstrate  that  these 
admitted  facts  make  no  good  cause  of  c.ction,  his 
demurrer  will  overwhelm  you.  And  so  if  for  a  de- 
fendant you  draw  a  plea,  which  the  plaintiff  may  ad- 
mit to  be  true,  and  he  yet  can  show  that  the  allegadons 
admitted  make  no  defense,  he  will  not  be  obstructed. 

But  we  may  turn  from  pleading,  and  look  at  each 
detail  of  the  evidence  to  be  introduced.  Every  part 
and  parcel  of  that  has  to  run  the  gauntlet  of  Phil- 
lips and  Greenleaf.  The  law  not  only  says  v/hat 
shall  be  a  cause  of  action,  and  what  shall  be  a  good 
defense,  but  it  likewise  settles  what  evidence  sliall 
be  admitted  and  what  excluded.  Every  separate 
sentence  of  a  witness  can  raise  a  question  under  the 
law  of  evidence. 

In  all  legal  preparation  you  commence  with  some 
assumed  rule  of  law  and  proceed  to  another,  and  ro 
on,  it  may  be,  step  by  step,  through  many  more  be- 
fore you  reach  the  verdict  or  judgment  desired.  And 
the  aim,  therefore,  of  preparation  as  to  the  law  will 
be  that  you  make  no  misstep  in  the  whole  progress, 


PREPARA  TION.  loi 

ahd  that  you  plant  your  pleadings  and  evidence,  both 
as  a  whole  and  in  detail,  immovably  upon  a  rock  of 
the  law.  It  will  also,  as  part  and  parcel  of  this  task, 
be  your  purpose  to  show  that  your  adversary  has  in 
his  })leadings  and  evidence,  in  one  or  in  both,  failed 
to  nioet  your  case. 

In  this  preparation  the  lawyer  will  find  that  there 
are  to  him  practically  three  kinds  of  law\ 

The  first  kind  of  law  is  that  which  is  surely 
against  or  counter  to  him.  This  he  must  avoid,  and 
steer  around. 

The  second  kind  of  law  is  that  which  he  may 
build  upon  with  unerring  certainty.  It  may  be  the 
command  of  the  statute,  or  a  harmonious  current  of 
decisions  and  authorities. 

And  the  third  kind  is  a  considerable  domain 
slowly  lessening  in  size  every  year,  but  which  will 
never  all  disappear,  and  that  is  where  the  law  is 
really  doubtful. 

No  prudent  lavvyer  will  impugn  law  of  the  first 
sort.  He  w411  handsomely  yield  to  necessity  insu- 
perable. And  he  will  sacrifice  no  advantages  of  his 
client  on  the  law  which  surely  favors  him. 

But  so  different  are  the  minds  of  men  that  we 
often  find  jarring  and  conflicting  decisions.  A 
judge  wnll  sometimes  reverse  himself.  A  court  will 
now  and  then  overset  some  previous  ruling.     And 


I02  CONDUCT    OF    LITIGATION. 

there  are  many  unceitainties  inherent  in  the  law  it- 
self. Language,  either  on  the  statute  book  or  from 
the  mouths  of  judges  delivering  opinions  or  judg- 
ments, is  obscure  and  ambiguous,  and  there  is  then 
ground  for  controversy  as  to  its  meaning.  Now, 
upon  all  doubtful  law  the  counsel  preparing  his  case 
should  take  chances  with  judgment.  Let  him  give 
his  client  opportunity  of  winning.  He  will,  how- 
ever, avoid  trusting  too  much,  if  he  can,  to  this  un- 
certainty. He  should,  to  use  a  colloquial  expression, 
have  another  string  to  his  bow.  But  we  will  dis- 
cuss this  more  fully  when  we  come  to  our  chapter 
on  Plan  of  Conduct. 

But  there  is  much  else  properly  belonging  to  this 
chapter.  The  law  is  a  great  armory.  No  one  who 
begins  an  action  can  ever  anticipate  precisely  what 
cross-action,  lying  in  wait  for  him  somewhere,  he  may 
provoke.  It  is  not  germane  to  our  purpose,  in 
search,  as  we  are,  of  only  the  most  general  principles, 
to  discuss  in  detail  the  whole  series  of  injunctions, 
cross-suits,  set-offs,  procuring  the  appointment  of  a  re- 
ceiver, and  such  other  remedies,  which  often  turn  a 
confident  attack  into  a  hard  pressed  defense,  or  drive 
a  party  into  other  straits.  This  belongs  rather  to 
the  subject  of  local  practice  than  the  conduct  of  liti- 
gation We  can  only  say  to  our  reader  that,  premis 
ing  for  him,  as  we  have,  a  knowledge  of  the  law  em- 


PRE  PARA  TION.  105 

bracing  all  these  remedies,  that  he  must  ever  be 
asking  himself  the  question,  Can  I  better  my  self  witlj 
a  change  of  forum,  or  a  new  remedy,  or  some  other 
addition  to  my  attack  or  defense  ?  Often  the  case 
can  be  removed  from  a  court  where  you  may  have 
good  reason  to  shrink  from  a  trial,  into  another 
where  you  would  have  no  fear. 

Thus,  a  suit  was  brought  upon  a  guardian's  bond 
in  the  county  where  the  surety  resided.  The  princi- 
pal, who  resided  in  another  county,  was  utterly  insol- 
vent. On  the  trial,  the  plaintiff  appeared  to  have 
made  out  his  case  satisfactorily,  and  to  have  over- 
come w'th  his  evidence,  that  supporting  rather  a 
flimsy  defense.  But  there  was  a  verdict  for  the  de- 
fendant, and  it  could  not  be  set  aside,  for  it  was  held 
pot  to  be  so  strongly  and  decidedly  against  the 
v/eight  of  the  evidence  as  to  require  the  granting  of  a 
new  trial.  Now,  the  action  should  have  been  brought 
in  the  county  of  the  residence  of  the  guardian,  the 
principal  in  the  bond,  as  it  could  have  been  under  the 
local  law.  For  the  plaintiff  would  then  have  had  the 
surety  away  from  home,  and  where  his  popularity  in 
the  vicinage  could  do  him  no  good,  and  where,  too, 
he  would  have  been  burdened  with  the  odium  of  the 
faithless  guardian.  Besides,  the  plaintiff  would  in 
that  county  have  had  the  privilege  of  examining  the 
guardian   in   open    court,  which   would   have    been 


104  CONDUCT    OF    LITIGATION. 

worth  much  to  him.  As  it  was,  the  guardian's  tes- 
timony was  taken  by  commission  for  the  surety,  be- 
cause, under  the  local  law,  a  witness  could  not  be 
made  to  attend  in  a  civil  case  out  of  his  county. 
This  testimony  was  all  that  supported  the  plea  of  the 
surety.  A  rigid  cross-examination,  viva  voce,  would 
have  emptied  it  of  all  its  seeming  force.  But  the 
law  of  that  state  only  permitted  a  list  of  set  cross- 
interrogataries  to  be  addressed  to  witnesses  testifying 
before  a  commission.  The  plaintiff  threw  away  tx-^o 
great  advantages  by  suing  in  the  wrong  county,  and 
thus  lost  the  verdict  which  he  would  otherwise  have 
probably  won.  When  the  surety's  hand  was  dis- 
closed by  the  service  of  his  interrogatories  on  the 
plaintiff,  the  suit  should  have  been  dismissed,  and 
another  action  brought  in  the  county  of  the  guardian. 
Again :  a  party  suing  or  prosecuting  may  have 
given  cause  of  action  or  prosecution  to  his  adversary. 
Thus,  where  A,  who  was  a  member  of  a  most  popu- 
lar and  influential  family,  was  pressing  hard  a  prose- 
cution of  B,  who  was  almost  unknown  in  the 
county,  for  an  assault  and  battery,  B,  by  the  advice 
of  his  counsel,  prosecuted  A  for  shooting  at  him  with 
a  fire-arm,  an  offense  much  more  serious,  under  a 
local  statute,  than  the  other.  Both  bills  were  found 
true  by  the  grand  jury.  The  shooting  and  the  bat- 
tery were  only  parts  of  the  same  fight,  unjustifiable 


PREPARATION.  105 

on  both  sides.  A  plea  of  guilty  was  promptly 
entered  to  the  indictment  for  the  lesser  offense,  and 
B's  counsel  appearing  for  the  prosecution  and  con- 
tending with  vigor,  A  was  convicted.  The  counsel 
then  proposed  to  A  and  his  friends,  that  it  was  now 
their  policy  to  join  with  him  in  an  application  to  the 
court  to  lighten  the  punishment  of  both,  which  pro- 
posal was  perforce  accepted;  and  the  court  duly  con- 
sidering the  weighty  representations  procured  from 
the  grand  jury  and  other  persons  of  standing  and  rep- 
utation by  the  influence  of  A's  family,  and  also  the 
more  potent  appeal  of  both  prosecutors,  visited  each 
defendant  with  the  lightest  penalty  that  under  the  law 
T.e  could  inflict.     This  was  substantial  victory  to  B. 

The  prudent  commander,  however  hard  pressed, 
will  save  his  colors  and  his  baggage.  And  so  in 
forensic  warfare,  if  but  the  beginning  be  judicious 
and  the  ground  well  studied,  there  will  be  found 
almost  always  at  least  honorable  retreat.  You  will 
but  seldom  give  an  able  and  wary  practitioner  a 
Waterloo. 

These  hints  are  thrown  out  in  order  that  the 
young  counsel  be  impressed  that  he  should  not  too 
hastily  decide  upon  any  particular  action  or  defense, 
nor  that  he  confine  himself  after  such  decision,  at  all 
events,  to  the  same.  We  have  already  said  that  no 
case  can  exhibit  as  numerous  diversifications  as   -in 


To6  CONDUCT    OF    LiriGATION. 

extensive  campaign.  But  it  is  only  known  to  the 
careful  and  diligent  lawyer  how  many  different 
presentations  of  a  case,  apparently  simple,  may  often 
under  the  law  be  made. 

Superiorities  of  law,  like  those  of  evidence,  are 
discovered  after  minute  examination  of  the  case. 
The  whole  facts  must  be  understood  fully  before  any 
accurate  generalization  may  be  made.  A  winning 
superiority  of  law  or  evidence  is  a  generalization  of 
the  particulars  of  the  case.  For  instance,  if,  after 
close  scrutiny,  you  find  that  on  a  turning-point  of 
the  case,  you  have  a  preponderance  of  testimony,  it 
is  shown  by  a  generalization  of  the  testimony  of 
both  sides.  And  again,  grouping  the  facts  to  give 
you  an  ascendency  on  some  particular  rule  of  law,  !s 
another  instance  of  the  same  process.  There  are 
but  these  two  superiorities  —  law  and  fact  —  and 
neither  can  be  demonstrated  save  from  a  careful  re- 
view and  analysis.  And  the  generalizations  can 
never  be  surely  reached  save  by  a  detailed  contem- 
plation of  all  the  particulars. 

The  born  lawyer  in  his  preparation  exhibits  a 
growing  tendency  to  found  his  aggressive  or  defen- 
sive combinations  the  more  circumspectly  on  sound 
legal  principles.  The  wary  veteran  of  forensic  bat- 
tles is  all  the  while  suspicious  that  his  assumptions 
will  be  shown  to  contravene  the  law,  and  this  sus- 


PREPARATION.  107 

picion  keeps  him  from  sleeping  in  a  false  security. 
After  a  while  he  begins  to  know  the  law  almost 
instinctively. 

Next  he  shows  another  growing  tendency.  He 
is  too  busy  for  much  laborious  thought.  He  is  a 
man  of  action.  Often  he  can  not  give  legal  ques- 
tions in  his  case  a  thorough  examination  before  he 
must  argue  them  before  the  court  of  last  resort 
This  constraint  begets  in  him  a  wonderful  faculty  of 
steering  his  cases  around  doubtful  encounters  on  law 
questions.  He  never  engages  with  his  adversary  foi 
the  mere  love  of  controversy.  He  must  see  either 
that  controversy  is  inevitable  or  that  he  can  antici- 
pate with  much  probability  some  justifying  advan- 
tage from  it.  For  legal  questions,  though  easy  when 
argued  for  us  by  able  lawyers,  learned  judges,  and 
gifted  text-writers,  are  not  always  easy  to  decide 
before  such  argument.  Easy  law  questions  are  not 
seriously  mooted.  When  able  lawyers  divide  on 
questions  of  law,  and  decide  to  argue  them  in  ear- 
nest, there  is  generally  difficulty.  The  necessary 
analysis,  in  order  to  present  the  cardinal  points,  is 
often  a  Herculean  labor.  And  the  wary  lawyer 
avoiding  gins  and  snares,  will,  if  he  can  with  safety, 
at  once  evade  a  question  which  he  has  not  time  to 
investigate,  and  press  his  adversary  into  ground  bet- 
ter knov/n. 


loS  CONDUCT    OF    LITIGAriON. 

But  in  the  preparation  of  the  law  of  the  case, 
when  the  local  statutes  and  decisions  and  the  stand- 
ard text-books  fail  of  giving  the  desired  counsel  to 
the  lawyer  consulting,  "  the  search  for  principles 
must  be  made.  These  principles,  it  should  be  re- 
membered, do  not  severally  belong  to  particular 
corresponding  subjects  or  branches  of  the  law ;  but 
like  the  warp  to  the  woof  in  cloth,  extend  through 
all  subjects.  For  example,  there  may  be  found  in 
connection  v/ith  the  law  of  insurance  a  principle 
which  runs  not  only  through  this  branch,  but 
through  that  of  bills  and  notes,  agency,  partnership 
and  many  other  branches,  and  governs  a  question 
arising  on  a  libel  for  smuggling  goods.  So  that, 
althouirh  under  the  head  of  smuo-p-lino^  there  is  no 
doctrine  or  decision  either  in  digest  or  treatise,  tc 
meet  the  exigency,  yet,  under  other  titles  may  be 
found  the  principles  which  are  to  determine  the  case 
of  smuggling.  How  a  principle  is  to  bear  upon  a 
case,  in  what  form  and  order  the  one  and  the  other 
are  to  be  resolved  in  the  mind  of  the  investigator, 
and  many  other  like  practical  matters,  are  better 
learned  by  experience  and  general  study  than  by  any 
directions  which,  without  occupying  too  much  space, 
can  be  given  here."  ' 

The  same  author  gives  an  instance,  from  his  own 
'  Bishop,  First  Book,  §  444. 


PREPARATION.  109 

practice,  of  establishing  a  new  principle :  It  is  the 
case  of  Mellen  v.  Whipple,  i  Gray  (Mass.).  "The 
facts  were  that  Whipple  had  bought  a  piece  of  land, 
subject  to  a  mortgage  ;  taking,  as  is  customary  in 
Massachusetts,  a  deed  poll  (which  is  deed  in  one  part 
signed  only  by  the  grantor)  ;  and  in  the  deed  the 
mortgage  was  mentioned,  adding, '  which  mortgage, 
with  the  note  for  which  it  was  given,  the  said  Whip- 
ple is  to  assume  and  cancel'  By  previous  decisions, 
such  a  recitation  in  a  deed  creates  a  promise  in  law 
fi-om  the  grantee  to  his  grantor  to  take  up  the  note 
and  mortgage.  But  in  this  case,  Whipple  having 
failed  to  pay  the  mortgage-note,  the  holder  of  it, 
who  had  nothing  to  do  with  the  original  transaction, 
brought  against  him  this  suit.  And  the  question 
v/as,  Y.'hether  there  was  any  such  privity  between 
the  parties  as  would  enable  the  plaintiff  to  maintain 
the  action. 

"The  Massachusetts  decisions  going  further, 
perhaps,  than  the  English,  appeared  on  the  face  of 
them  to  contain  the  broad  doctrine  without  excep- 
tion, that  in  every  case,  if  a  promise  is  made  to  A, 
on  any  good  consideration  moving  from  A  to  pay 
money  to  B,  the  latter  can  sue  the  promisor  on  this 
promise  and  recover.  Of  course,  if  this  was  really  a 
rule,  to  which  there  was  no  exception,  there  was  no 
resisting  the  present  demand.     The  counsel  for  the 


no  CONDUCT    OF    LITIGATION. 

defendant  found  that  by  traveling  out  of  Massachu- 
setts he  could  find  a  plenty  of  decisions  denying  the 
right  of  the  third  party  to  recover,  and  plenty  of 
others  in  which  the  right  was  maintained.  But  none 
of  the  books,  whether  books  of  reports  or  text-books, 
contained  any  statement  of  an  intelligent  principle 
distinguishing  the  one  class  of  cases  from  the  other. 
At  length  a  principle  did  occur  to  the  mind  of  the 
defendant's  counsel,  apparently  reasonable  and  just 
in  itself,  reconciling  most  of  the  cases  ;  and  while  it 
tallied  with  the  theory  that  all  the  previous  Massa- 
chusetts cases  wherein  such  a  plaintiff  was  permitted 
to  recover  were  correctly  decided,  brought  the 
present  case  on  the  other  side  of  the  line.  It  was  as 
stated  in  the  abstract  of  his  argument,  given  in  the 
book  of  reports,  as  follows :  '  The  principle  on 
which  a  third  person  is  permitted  to  recover  on  a 
promise  made  by  the  defendant  for  his  benefit  in 
cases  where,  like  the  present,  no  part  of  the  consid- 
eration proceeded  from  him,  is,  that  there  is  some 
property  or  thing  in  the  hands  of  the  defendant^ 
which  is  the  consideration  of  the  promise,  held  by 
the  defendant  as  a  trust,  or  a  fund,  upon  whicli  the 
plaintiff  has  an  equitable  claim.  Unless  there  is 
something  to  which  such  equitable  claim  can  attach, 
he  can  not  recover,  though  the  promise  is  made 
on   Some  other  good  consideration  as  between  the 


PREPARATION.  in 

immediate  parties  to  it.'  And  he  showed  that  in 
the  present  case  there  was  no  fund  except  the  land ; 
and  under  the  mortgage  the  plaintiff  had  all  this 
land  b}'  a  claim  prior  to  the  deed  under  which  the 
defendant  afterward  became  the  owner  of  the  mere 
right  to  have  it  if  he  chose  to  take  up  the  mortgage. 
Therefore  there  was  absolutely  no  such  fund. 

"  The  consequence  was  that  this  view  of  the  case 
carried  the  court  and  prevented  what  otherwise 
would  quite  likely  have  occurred,  a  decision  in  favor 
of  the  plaintiff." ' 

We  must,  however,  remind  the  reader  that  he 
will  find  judges  extremely  averse  to  making  avozv- 
cdlv  new  rulino-s.  He  must  remember  that  the  al- 
most  humorous  description  of  Sir  H  Maine  is  but 
the  truth.     He  says  :' 

"  With  respect  to  that  great  portion  of  our  legal 
system  which  is  enshrined  in  cases  and  recorded  in 
law  reports,  we  habitually  employ  a  double  language 
and  entertain,  as  it  would  appear,  a  double  and 
inconsistent  set  of  ideas.  When  a  group  of  facts 
come  before  an  English  court  for  adjudication,  the 
whole  course  of  the  discussion  between  the  judge 
and  the  advocate  assumes  that  no  question  is,  oi 
can  be,  raised  which  will  call  for  the  application  of 

*  Bishop,  First  Book,  §§  467-469. 
'  Ancient  Law,  31  (London,  1870). 


112  CONDUCT    OF    LITIGzlTION. 

any  principles  but  old  ones,  or  of  any  distinctions 
but  such  as  have  long  since  been  allowed.  It  is 
taken  absolutely  for  granted  that  there  is  somewhere 
a  rule  of  known  law  which  will  cover  the  facts  of 
the  dispute  now  litigated,  and  that  if  such  a  rule  be 
not  discovered,  it  is  only  that  the  necessary  patience, 
knowledge,  or  acumen  is  not  forthcoming  to  detect 
it.  Yet,  the  moment  the  judgment  has  been  ren- 
dered and  reported,  we  slide  unconsciously  or 
unavowedly  into  a  new  language  and  a  new  train 
of  thought.  We  now  admit  that  the  new  decision 
has  modified  the  law." 

You  must  not,  therefore,  if  you  can  avoid  it 
shock  the  sensitiv^e  conservatism  of  a  judge  by  ask- 
ing avowedly  for  an  innovation.  If  it  is  necessai}' 
for  your  case,  it  should  be  solicited  as  an  old  princi- 
ple. But  sometimes  all  pretense  must  perforce  be 
thrown  aside ;  for  the  novelty  of  the  demand  is  too 
striking  to  be  concealed.  Here  the  lawyer,  if  he 
would  succeed,  must  come  before  the  court  fully 
furnished  with  resistless  demonstration.  He  must 
have,  besides,  an  infallible  presentiment  and  know 
that  the  judicial  mind  is  ready  to  advance  courage- 
ously before  he  can  safely  rest  his  case  upon  the 
chance  of  such  a  decision  as  he  nov/  seeks.  Let 
him  have  other  points  if  he  can. 

The   lawyer,  in   the    selection  ol    his  points  on 


PRE  PA  RA  TION,  1 1 3 

which  he  will  stand,  must  needs  show  good  sense 
and  judgment.  As  he  grows  older  he  carefully  re- 
frains from  what  may  be  termed  overrefining.  The 
law  is  not  of  the  family  of  the  exact  sciences.  It 
has  a  favorite  maxim,  that  it  cares  not  for  small 
things.  The  plain  men  in  the  jury  box  are  struck 
with  prominences  and  appreciable  superiorities  in 
the  evidence.  They  measure  roughly,  and  care  not 
to  be  finically  precise.  And  the  judge  on  the 
bench  is  practical,  too.  His  knowledge  of  the  law 
is  scientific,  and  not  empirical,  it  is  true.  But  his 
science  teaches  him,  that  he  can  not  find  the  ex- 
actitudes of  mathematics.  He  will  often  decide 
right,  and  be  as  unable  to  give  a  good  reason  as  a 
woman  for  her  right  decision.  Fie  will  give  you 
correct  judgments,  not  "  laboriously,  but  luckily." 
Mr.  Bishop  has  well  described  this  necessary  fac- 
ulty of  the  good  judge  and  good  lawyer  : 

"  There  is,  moreover,  besides  this  comparison 
[of  many  cases  with  one  another  and  the  principle], 
a  legal  judgment,  not  quite  definable  in  its  nature, 
whereby  a  lawyer,  well  educated  in  his  profession, 
and  i)ossessing  a  truly  legal  mind,  is  able  to  pass 
with  great  accuracy  on  principles,  even  before  they 
are  thoroughly  tested,  by  comparison  with  the  ad- 
judications. This  legal  judgment,  if  it  can  not  be 
defined,  can  be  described  by  instituting  comparison 

8 


114  CONDUCT    OF    LITIGATION. 

between  it  and  some  other  things.  Thus,  if  on,e 
presents  a  literary  work  which  he  claims  is  able  to 
charm  the  masses  of  men  who  read  books,  there  is 
no  way  by  which  the  correctness  of  this  claim  can 
be  absolutely  tested  except  by  trial.  Yet  there  are 
those  who,  like  physicians,  accustomed  to  feel  the 
pulse  of  patients  until  they  can  tell,  without  the 
watch,  how  fast  the  beat  is,  are  constantly  feeling 
the  public  pulse  in  such  matters ;  and  if  the  literary 
work  is  of  a  common  sort,  such  as  has  been  tested 
over  and  over  again,  they  can  judge  with  great 
accuracy  what  its  success  will  be.  It  is  so,  also,  with 
judgments,  passed  by  experienced  persons,  on  pro- 
ductions in  the  fine  arts.  The  practiced  judgment 
operates  with  great  precision ;  and,  in  most  in- 
stances, its  operation  is  as  quick  as  it  is  sure." ' 

The  legal  judgment  is  the  result  of  long 
familiarity  with  the  law,  as  Lord  Coke  told  King 
James :  "  I  crave  leave  to  remind  your  majesty 
that  causes  which  concern  the  life,  or  inheritance,  or 
goods,  or  fortunes  of  your  subjects,  are  not  to  be 
decided  by  natural  reason,  but  by  the  artificial 
reason  and  judgment  of  law,  which  law  is  an  art 
which  requires  long  study  and  experience  before 
that  a  man  can  attain  to  the  cognizance  of  it." 

'  Bishop.  First  Rook,  g  472. 


PREPARATION.  115 

The  pleadings  do  not  require  the  attention  that 
they  once  did.  They  beeome  less  and  less  artificial 
in  England  and  all  over  America.  But,  as  we  have 
said,  it  is  not  our  design  to  intrude  on  the  province 
of  the  author  of  law  treatises.  We  have  only  to 
remind  our  reader  that,  while  the  privilege  of 
amendment  saves  nearly  all  bad  pleading,  still,  that 
the  addition  of  any  important  allegations,  by  the 
exercise  of  the  privilege,  will  generally  surprise  the 
adversary,  and  he  must  be  allowed  sufficient  time  to 
answer  the  new  matter.  You  will  then  hardly  ever 
be  able  to  force  him  to  a  trial  before  the  next  term. 
It  is  often  of  the  utmost  consequence  to  a  lawyer  to 
coerce  a  trial,  and  he  who  pleads  badly  may  throw 
away  a  golden  opportunity  which  he  shall  never  see 
return.  Let  your  pleadings  be  neat,  brief,  lucid, 
but  for  all  this,  full ;  that  is,  making  such  a  case 
that  you  shall  not  be  driven  an  into  amendment,  or 
deprived  of  a  triumph  by  an  arrest  of  judgment. 


Ii6  CONDUCT    OF    LITIL  MION. 


CHAPTER  VII. 

OTHER  PARTICULARS  OF  PREPARATION. 

We  hope  that  we  have  now  made  our  re?('crs 
understand  clearly  our  conception  of  a  right  prepar- 
ation of  a  case.  Still  we  will  enforce  the  lessons  we 
have  been  teaching,  by  presenting  a  few  reflections 
of  a  somewhat  general  character. 

In  the  first  place,  let  us  note,  as  a  fauh,  too  com- 
mon with  many  eminent  counsel,  that  tL^ey  leave 
the  investigation  of  the  case  and  the  classification  of 
its  details  to  inferior  workmen.  Many  asiumc  no 
part  in  the  management  of  the  case  befoiC  ^rial. 
They  seem  by  their  conduct  anxious  to  inculcate 
the  belief  that  their  great  abilities  are  only  for  tiie 
court-room ;  that  the  conduct  there  is  the  more  im- 
portant ;  that  there  is  as  little  precedent  preparation 
of  a  case  necessary  as  there  is  of  a  game  of  chess. 
And  it  will  be  seen  that  the  people  at  large  believe 
that  this  is  true.  They  seek  a  strong  speaker  to 
argue  their  causes.  They  seem  to  care  little  for  the 
talents  or  training  of  the  humble  lawyer  on  whom 
they  shall  devolve  the  burden  of  preparation.  His 
labors    appear    to    them    ministerial    and    clerical. 


PREPARATION.  117 

They  rate  the  preparation  of  a  case  as  the  easy  ac- 
complishment of  average  abiHty.  Now,  we  have 
striven  and  written  in  vain  for  our  reader,  if  we  have 
not  convinced  him  that  the  m-eat  need  of  the  hi2:h- 
est  talents  of  a  lawyer  is  in  shaping  the  conduct  o 
the  case  before  trial.  Can  the  topography  of  a  field 
be  learned  as  well  after  the  battle  begins,  as  it  can 
be  in  days  of  exclusive  attention  before-hand  ? 
And  can  a  lawyer  who  has  never  looked  into  an  in- 
tricate case,  when  the  night  before  the  trial  has 
come,  master  the  pleadings,  the  long  array  of  docu- 
ments, and  the  other  proofs,  and  make  the  analysis 
of  the  whole  necessary  for  its  proper  management, 
as  well  as  if  he  had  taken  months  to  do  all  these 
things,  with  no  disturbing  and  spurring  prcssiN*j 
upon  him  ?  Our  young  lawyers  will  do  well  to 
master  thoroughly  the  duties  of  English  attorneys 
and  solicitors.  They  first  make  a  full  statement  of 
the  case.  This  is  then  submitted  to  counsel,,  who 
gives  an  opinion.  And  so  onwards  every  step  of 
the  preparation  is,  as  it  were,  in  careful  writing. 
Finally,  on  the  eve  of  trial,  the  brief  made  up  by  the 
attorneys  would,  to  any  intelligent  lawyer,  tell  the 
whole  of  the  client's  case.  The  evidence  is  mar- 
shaled and  the  whole  case  is  analyzed,  the  issues 
presented,  and  the  line  of  conduct  accurately  indi- 
cated.    I  am  convinced  that  our  system  here  is  the 


ii8  CONDUCT    OF    LITIGATION. 

better,  uniting,  as  it  does,  attorney  and  counsel  in 
one.  Its  faults  are  not  inherent,  while  its  superior- 
ity to  the  English  is  inherent.  Under  the  English 
system,  the  counsel  is  never  brought  in  contact  with 
the  witness  until  he  faces  him  on  the  stand.  To  use 
a  metaphor  from  the  military,  the  general  never 
reconnoiters  in  person.  I  add  with  hearty  approval 
the  language  of  the  celebrated  lawyer,  David  Paul 
Brown  : 

"  Both  of  these  systems  [the  Roman  and  the 
English]  were  undoubtedly  less  onerous  and  more 
agreeable  than  ours,  but  neither  of  them  was  as 
beneficial  or  so  economical  as  that  which  is  almost 
invariably  adopted  in  the  American  courts,  and 
especially  in  Pennsylvania.  Here  the  attorney  is 
the  counsel  and  the  counsel  the  attorney  ;  he  man- 
ages and  controls  the  entire  progress  of  the  suit ;  his 
intercourse  with  his  client  is  not  intermediate  but 
direct ;  he  conducts  all  the  pleadings,  prepares  his 
own  brief,  examines  the  witnesses  in  his  office  or  in 
court,  digests  and  arranges  his  own  authorities,  and 
finally  argues  the  cause.  The  labor  incident  to 
these  duties  is  very  great,  but  its  advantages  are 
commensurate.  A  man  can  never  perform  any 
work  so  satisfactorily  as  when  he  is  acting  upon  his 
own  knowledge,  nor  can  any  facts  procured  by  an 
attorney  be  as  satisfactory  to  counsel  as  those  which 


PREPARATION.  119 

he  himself  might  obtain  by  personal  examination. 
Every  man  has  his  own  views  in  regard  to  the 
points  of  a  case  and  the  natme  of  the  evidence 
required  to  elicit  them,  and  he  can  therefore  '  best 
minister  to  himself.'  This  course  secures  counsel 
against  confusion  and  surprise ;  it  furnishes  him 
with  a  knowledge  of  the  weakness  as  vv^ell  as  the 
strength  of  his  case  and  that  of  his  adversary  ;  it 
brings  him  into  timely  contact  with  his  witnesses,  he 
becomes  acquainted  with  their  manner,  their  temper, 
their  bias ;  all  of  which  enter  largely  into  the  esti- 
mate of  their  testimony.  It  has  been  suggested 
that  this  would  be  impracticable  in  England.  It 
might  be  inexpedient  to  make  any  radical  change  in 
their  deeply-rooted  system,  but  it  certainly  would 
not  be  impracticable,  nor  perhaps  injudicious.  It  is 
true  we  can  not^  argue  against  a  system  merely  be- 
cause it  is  subject,  in  some  respects,  to  casualties  or 
exceptions,  but  those  who  have  attended  legal  pro- 
ceedings at  Westminster  Hall  or  Lincoln's  Inn 
could  not  fail  to  have  perceived,  and  not  unfre- 
quently,  great  embarrassment  of  the  counsel  from  a 
want  of  that  familiarity  with  facts  and  their  applica- 
tion to  the  legal  points  of  a  case,  which'  would  have 
been  avoided  or  lessened  by  pursuing  the  system 
adopted  in  this  country.  No  lawyer  can  examine  a 
witness    satisfactorily  from  the  notes  or  brief  pre- 


120  CONDUCT    OF    LITIGATION. 

pared  by  any  other  hand  than  his  own ;  he  is  often 
rather  benighted  than  enlightened.  And  of  all 
briefs,  the  brief  of  an  attorney  would  be  the  most 
objectionable  or  least  available.  They  save  time  to 
counsel,  but  they  place  him  in  a  state  of  dependence 
from  which  it  in  some  cases  happens  no  genius  or 
talent  can  relieve  him.  A  man  who  always  depends 
upon  another,  naturally  and  necessarily  impairs  his 
own  powers. 

"  We  remember  a  rather  amusing  instance  of  this 
in  the  argument  of  an  injunction  in  the  case  of  The 
Queen  v.  Strange,  before  Sir  Knight  Bruce,  in 
1848.  The  attorney  or  solicitor  having  of  course 
prepared  the  [brief  of  (?)]  the  pleadings,  which 
were  voluminous,  bill,  answer,  &c.,  the  learned 
judge  during  the  argument  inquired  of  Mr.  Tal- 
FOURD  as  to  the  averment  of  ascertain  fact  which 
was  deemed  vital  to  the  proceeding.  The  learned 
Sergeant  (who  had  probably  never  read  anything 
more  than  an  abstract  of  the  bill)  could  not  lind  it 
— none  of  the  attorneys  could  find  it.  The  crown 
affirmed  its  existence,  the  defendant  denied  it,  and 
after  an  hour's  confusion  it  turned  out  that,  although 
contained  in  the  original  bill,  it  had  been  omitted 
from  the  transcript.'" 

As  the  preparation  of  a  case  becomes  more  im- 
'  2  Forum,  255,  rt  sea. 


PREPARATION.  121 

portant  than  the  trial,  as  the  facts  and  details  of  the 
case  increase  in  number  and  intricacy,  so  does  this 
more  important  part  of  the  preparation  require  the 
closest  attention  from  the  ablest  professional  talent 
at  the  command  of  the  client.  And  never  should 
the  loftiest  counsel  forego  an  opportunity  of  talking 
with  the  witnesses  and  parties  in  person.  Mr. 
Parker  narrates  the  following,  which  will  enforce 
what  we  are  saying: 

"  Fie  [one  Captain  Ashton]  claimed  to  have 
loaned  several  thousand  dollars  to  a  trader  upon  a 
mort2:aQ:e  of  his  stock.  The  trader  failed,  and  his 
creditors  contested  the  mortgage.  They  urged  that 
the  captain  had  no  visible  means,  no  property,  and 
coi;ld  not  have  had  the  money  to  lend  on  mortgage ; 
and,  moreover,  that  the  trader's  stock  of  goods  was 
so  small,  and  his  assets  so  deficient,  that  he  could 
not  have  had  the  money. 

"  Captain  Ashton  contended  that  his  money 
came  to  him  from  England  in  sovereigns,  and  that 
he  lent  this  gold  to  the  trader. 

"It  looked  rather  dubious  for  Ashton. 

"  i^lr.  CiiOATE  prepared  to  try  the  case  for  the 
plaintiff,  Ashton.     It  was  to  come  on  at  Lowell. 

"The  plaintiff's  witnesses  were  summoned  to 
meet  Mr.  Choate  in  a  room  of  the  hotel.  Ashton 
had  not  met  his  debtor  for  some  time.     Mr.  Ashton 


122  CONDUCT    OF    LITIGATION. 

and  his  counsel  with  witnesses,  were  in  the  private 
room  when  the  mortgagor,  who  had  been  notified  to 
attend,  came  in.  Ashton  sprang  at  him  hke  a  tiger. 
'  You  scoundrel,'  said  he,  '  you  have  cheated  me  ; 
you  have  robbed  me  of  my  gold.' 

"  Mr.  Cpioate  remarked  to  the  writer,  years 
aft  erwards,  in  speaking  of  this  case,  '  That  incident 
satisfied  me  my  client  was  right.  I  knew  it  and  felt 
it,  and  knew  that  was  the  case  for  me.  I  care  not 
how  hard  the  case  is — it  may  bristle  with  difficulties 
— if  I  feel  that  I  am  on  the  right  side,  that  cause  I 
win.' 

"  Mr.  Choate  got  a  verdict,  but  it  was  set  aside 
for  some  cause  ;  and  before  the  second  trial  Ashton 
had  disappeared.  But  sufficient  facts  were  subse- 
quently developed  to  leave  no  doubt  that  Ashton's 
story  was  true." ' 

Now,  had  Choate  been  an  English  counsel, 
engaged  in  this  case  in  England,  he  would  not  have 
entered  the  trial  encouraged  by  having  v/itnessed 
this  impressive  spectacle.  Some  attorney  might 
have  seen  it  and  tried  to  narrate  it  to  Choate, 
but  he  could  not  have  represented  the  expression 
and  the  action  of  Ashton. 

We  will  fortify  ourselves  again,  with  the  testi- 
mony of  Mr.  Warren.  He  is  advising  the  English 
'  Reminiscences,  115. 


PRE  PA  RA  TION.  1 2  3 

attorney  in  getting  up  a  case  to  sift  the  witness 
well,  and  he  admits  that  counsel  are  unskillful. 
He  says: 

"  I  have  dwelt  at  considerable  length  on  the 
examination  of  the  evidence,  because  it  is  the  most 
important  of  all  duties  that  fall  to  the  lot  of  the 
attorney,  and  it  is  the  only  one  in  which  he  can 
derive  no  assistance  from  the  superior  information 
of  counsel ;  indeed,  I  have  generally  found  counsel 
more  unskillful  in  the  private  examination  of  wit- 
nesses than  ourselves"' — (that  is,  than  attorneys). 

The  inferiority  of  the  English  counsel  is  due  to 
their  little  practice   in  such  "  private  examination." 

There  is  a  natural  consolidation  as  well  as  a 
natural  division  of  labor,  and  so  there  is  simplifica- 
tion going  on  in  the  w^orld  as  well  as  multiplication. 
The  division  of  labor  between  the  English  attorneys 
and  counsel  is  as  unnatural  as  if  the  master  never 
took  his  scholar  in  hand  until  the  moment  of  final 
examination,  and  had  turned  over  his  training  to  an 
ignorant  subordinate.  A  delicate  trust,  requiring 
skill  and  tact  for  its  performance,  if  delegated  by  the 
trustee,  should  only  be  delegated  to  an  agent  pos- 
sessing the  requisite  qualificaLions.  What  would  be 
thought  of  a  historian — a  Mommsen  or  a  Nicbubr 

*  Warren's  Adventures  of  an   x\ttorney    &c.,  306.     (New 
York,   1S74.) 


124  CONDUCT    OF    LITIGATION. 

— who  employed  clerks  to  get  up  the  facts  for  him, 
from  which  he  drew  his  conclusions?  How  far 
short  of  his  present  able  and  exhaustive  treatment 
would  Mr.  Bishop  come,  if  he  never  consulted  the 
reports  and  authorities  for  himself,  but  took  them  at 
second  hand  from  the  digests  of  law  students  ?  If 
we  found  in  any  country  such  a  system  of  writing 
history  or  law-books  prevailing,  we  would  know 
that  this  division  of  labor  was  unnatural  and  per- 
nicious. And  so  it  seems  to  me  that  the  English 
system,  dividing,  as  it  does,  the  preparation  of  cases 
between  attorney  and  counsel,  and  never  permitting 
the  counsel  to  sift  the  witnesses  and  the  parties  for 
himself,  is  a  false  system.  And  I  have  no  hesitation 
in  saying,  that  I  believe  if  the  duties  were  inter- 
changed, if  the  superior  man  were  to  play  the 
attorney,  sift  the  witnesses,  marshal  the  proofs,  and 
leave  to  the  less  learned  and  able  the  drafting  of 
the  pleadings  and  the  conduct  at  the  trial,  that  in 
the  iinal  issue  of  litigation,  those  parties  who  had 
the  best  causes  would,  in  the  average,  fare  better 
than  they  do  now.  The  disease  of  the  system  is, 
that  it  assij^ns  the  feeblest  and  most  unskilled  men 
to  the  post  which  requires  the  most  strength  and 
skill,  and  it  artificially  divides  that  which  in  its 
nature  is  indivisible  and  integral. 

Let   our   young   lawyers   of   America    aspire  to 


PREPARATION.  125 

make  of  themselves  both  good  attorneys,  and  also 
good  counsel.  They  will  be  the  better  counscJ  for 
being  good  attorneys. 

But  it  is  advisable  for  a  client  in  an  importnnt 
cause  to  have  more  than  one  counsel.  Occasionally 
we  see  a  single  lawyer  get  up  an  important  and 
difficult  case  well,  and  conduct  it  faultlessly  from 
beginning  to  end.  But  a  lawyer  is  so  subject  to 
interruptions  of  all  kinds  that  he  will  seldom, 
though  ever  so  careful  and  painstaking,  be  will- 
ing to  undertake  the  entire  management  and 
preparation  of  a  case  by  himself.  Besides,  the 
old  adage  that  two  heads  are  better  than  one 
is  applicable.  Labor  merely  manual  or  clerical,  or 
any  other  kind  of  unskilled,  needs  not  much  look- 
ing after  if  the  laborer  is  honest.  But  where  there 
must  be ,  thought  and  reflection  at  every  step, 
the  wisest  and  most  capable  man  should  piece 
out  his  own  ability  with  the  assistance  of  others. 
You  have  seen  the  bystander  point  out  the  best 
move  in  the  game  which  had  been  overlooked 
by  the  pla;fcrs.  He  appears  vastly  superior.  But 
possibly,  there  have  been  many  good  moves 
made  which  he  had  not  anticipated.  Yet  as  to 
the  particular  move  which  he  has  suggested,  he 
has  seen  better  than  the  players.  I  inquired,  the 
character  as   a   lawyer   of  a   new   made    judge,  of 


126  CONDUCT    OF    LITIGATION. 

one  of  the  shrewdest  and  quickest  lawyers  I  ever 
knew.  "  Oh  ! "  he  repHed,  "  he  is  a  splendid  fellow 
to  sit  by  you  during  a  trial  and  give  you  sugges- 
tions." There  is  hardly  any  lawyer  who  will  not, 
if  he  is  conducting  a  case  alone,  sometimes  com- 
mit a  blunder  which  will  chagrin  him,  because 
after  it  is  committed  it  is  so  palpable.  But  he 
will  seldom  be  permitted  to  commit  such  a 
blunder  by  an  associate  of  even  humble  capacity. 
The  ablest  lawyer  will  generally  be  the  busiest, 
and  he  will,  therefore,  in  his  hours  and  moments 
of  fatigue  and  exhaustion,  or  when  he  is  too 
pressed  with  a  multiplicity  of  engagements  to 
look  into  any  one  thing  with  the  care  that  he 
should,  need  the  calm  insight  of  an  unruffled 
associate.  But  an  associate  should  divide  the 
burden  of  preparation.  Each  should  be  chosen 
for  his  peculiar  ability,  and  then  be  made  to 
exert  it.  The  following  passage  from  the  Life 
of   Burr   is  pertinent : 

"  He  [Burr]  showed  unequaled  tact  in  placing 
his  men.  Before  selecting  his  assistants  in  a 
cause,  he  would  ascertain  and  carefully  calculate 
all  the  opposing  influences — prejudices,  interest, 
indifference,  ignorance,  political,  local,  and  family 
feeling — and  choose  the  man  likeliest  to  combat 
^hem    with    effect.      If  there   was   a   crank   in   the 


PREPARATION.  127 

mind  of  the  judge,  he  would  find  the  hand  that 
could  turn  it  to  his  advantage.  If  there  was  a 
prejudice  in  the  mind  of  a  juror,  he  would  con- 
trive by  some  means  to  bring  it  to  bear  in  favor 
of  his  client.  If  learning  and  eloquence  were 
essential    he   would  enlist   their   aid   also."' 

The  leading  counsel  should  place  all  of  his 
associates  with  judgment.  There  should  be  fre- 
quent consultations  of  them  all,  and  the  whole 
preparation  passed  in  review.  Every  one  of  them 
should  at  any  moment  not  only  know  what  had  been 
done  by  all,  but  also  w^hat  each  was  then  doing, 
and  vras  to  do.  This  unity  will  secure  from  each 
his  utmost  achievement.  Faults  will  be  corrected, 
blunders  avoided,  surprises  anticipated.  The  client 
should  never  be  permitted  to  encumber  the  case 
with  useless  counsel.  He  should  be  made  to  un- 
derstand that  he  is  but  inviting  failure  according 
to  the  old  saying  that  what  is  everybody's  business 
is  nobody's,  if  he  has  a  throng  of  counsel  and  he 
can  not  say  which  one  should  lead.  There  must 
be  a  leader,  and  he  should  select  the  associate 
counsel.  His  own  experience  v/ill  dictate  to  him 
both  the  kind  of  associates  and  the  number 
that  he  desires.  When  selected  and  placed,  there 
should  be  between  all,  as  to  the  secrets  of  the  case, 
*  Parton's  Life,  150. 


128  CONDUCT    OF    LITIGATION. 

the  utmost  freedom  and  unreserve.  Every  contribu- 
tion that  any  one  can  make  should  be  made  to  the 
common  interest  without  stint.  Nursing  a  darling 
point  in  reticence,  and  keeping  it  from  his  associates 
to  display  suddenly  in  the  court-room,  is  unworthy 
of  a  lawyer.  Rather  when  the  preparation  has 
been  difficult  and  laborious,  and  a  faultless  conduct 
has  achieved  a  great  victory,  let  it  be  as  hard  to 
find  who  did  any  particular  part  of  the  perfect  work 
as  it  is  to  discover  the  authorship  of  an  editorial 
in  the  Times.  Bickerings  between  associates,  and 
manifestations  of  jealousy  of  each  other,  are  horrible. 
They  are  dishonoring  to  all  who  indulge  in  them. 

Treat  your  associate  always  with  respect.  Hear 
his  suggestions  with  attention.  Though  he  may  be 
as  far  from  you  as  night  is  from  day,  still  show  no 
impatience.  If  you  differ,  avoid  all  heat.  A  calm 
and  placid  statement  of  a  difference,  if  you  are  in 
the  right,  will  nearly  always  convince.  If  you  are 
not  in  the  right  and  you  keep  cool,  and  your  ad- 
viser without  excitement  states  his  vievv'S,  and  they 
are  right,  you  v/ill  yield.  For  truth  presented  to 
the  mind,  not  passionate,  is,  as  a  general  thing,  em- 
braced as  soon  as  seen. 

Local  counsel,  as  we  Americans  are  in  the  habit 
of  terming  lawyers  who  reside  in  the  county  where 
the  case  is  to  be  tried,  arr,  nearly  ahvays  indispen- 


PREPARATION.  129 

sable.  The  movements  of  the  adversary  and  the 
opposing  influences  at  work,  can  only  be  properly 
watched  by  counsel  on  the  spot,  and  most  of  the 
preparation  of  the  case  must  be  made  there  too. 
Nor  is  the  influence  of  local  counsel  to  be  despised. 
We  have  noted  before  the  great  popularity  of  law- 
yers and  their  numerous  troops  of  friends.  The 
personal  influence  of  a  lawyer  alone  is  often  worth 
a  great  fee. 

What  I  have  said  has  been  intended  to  be  sug- 
gestive rather  than  exhaustive  of  the  subject  of 
associate  counsel.  The  principles  determining  their 
proper  selection  arc*  well  understood  by  the  pro- 
fession, but  they  are  too  often  disregarded.  And  I 
leave  the  subject  now  with  the  observation,  that  I 
have  more  often  seen  too  many  counsel  than  too 
few  associated. 

We  have  time  and  again  insisted  that  the  lawyer 
always  have  a  purpose.  The  subject  is  so  surpass- 
ingly important  that  we  shall  say  something  in  ad- 
dition to  that  which  we  have  already  said  concern- 
ing it.  The  6th  of  David  Paul  Brown's  Golden 
Rules  for  the  examination  of  witnesses  is,  "  Never 
ask  a  question  without  an  object,  nor  without  being 
able  to  connect  that  object  with  the  case,  if  objected 
to  as  irrelative."  And  it  is  the  Golden  Rule  of  all 
preparation  that  everything,  from  beginning  to  end 
9 


130  CONDUCT    OF    LITIGATION. 

be  done  with  intelligent  purpose.  Merc  action  for 
the  sake  of  action,  as  a  woman  often  insists  on 
dosing  a  sick  patient  with  the  first  medicine  that 
comes  to  hand,  merely  because  something  must  be 
done,  is  sheer  foolishness.  It  is  not  enough  that 
everything  be  done  with  an  object — it  should  be 
done  in  accordance  with  the  well-understood  pur- 
pose of  the  right  preparation.  The  lawyer  acting, 
whether  he  is  leading  or  not  leading  counsel,  should 
have  an  intelligent  conception  of  the  necessary 
preparation  well  grasped  before  he  commences  to 
act.  If  not  he  will  disarrange  its  unity,  and  will 
be  often  detected  and  exposed  by  a  skillful  adver- 
sary as  warring  against  his  own  side. 

But  this  is  no  advice  to  stand  shivering  forever 
on  the  bank.  As  we  have  said,  a  lawyer  must  de- 
cide, and  deciding,  he  must  then  act  promptly,  and 
keep  acting  vigorously.  Fie  is  not  the  hesitating 
Hamlet,  who  stops  to  probe  and  sound  to  its  infinite 
depths  every  proposed  measure.  He  can  not  even 
meditate  long  over  his  law  books.  He  must  be  as 
quick  as  Kenyon  if  he  can,  of  whom  Lord  Camp- 
bell tells  us : 

"  DuNNiNCz,   instead    of  continuing   to    dine    on 

cowheel,  shortly  after  being  called  to  the   bar  was 

making  thousands  a  year,  and  had  obtained  a  seat  m 

•  Parliament.      He    had    many    more    briefs   than    ne 


PRE  PARA  TION.  131 

could  read,  and  many  more  cases  than  he  could 
answer.  Ken  yon  became  his  fag,  or  in  legal  lan- 
guage his  '  devil/  and  then  began  the  career  which 
led  to  the  Chief  Justiceship.  With  most  wonderful 
celerity  he  picked  out  the  important  facts  and  points 
of  law  which  lay  buried  in  immense  masses  of 
papers,  and  enabled  the  popular  leader  to  conduct  a 
cause  almost  without  trouble  as  well  as  if  he  had 
been  studying  it  for  days  together." 

This  quickness  introduced  Kenyon  to  Lord 
Thurlow.  The  same  biographer  says  :  "  But  his 
fortune  was  made  by  the  elevation  of  Thurlow  to 
the  woolsack.  This  man  of  extraordinary  capacity, 
and  extraordinary  idleness,  when  called  to  sit  in  the 
Court  of  Chancery  earnestly  desired  to  decide  prop- 
erly, and  even  coveted  the  reputation  of  a  great 
judge,  but  would  by  no  means  submit  to  the 
drudgery  necessary  for  gaining  his  object,  and  as 
soon  as  he  threw  off  his  great  wig,  he  mixed  in 
convivial  society  or  read  a  magazine.  To  look  into 
the  authorities  cited  before  him  in  argument  and  to 
prepare  notes  for  his  judgments,  Hargrave,  the 
learned  editor  of  Coke  upon  Littleto7i,  was  employed, 
but  he  was  so  slow  and  dilatory  that  the  lion  in  a 
rage  was  sometimes  inclined  to  devour  his  jackal. 
Kenyon,  sitting  in  court  with  a  very  moderate  share 
of  employment,   having   once    or   twice   as  amicus 


132  CONDUCT    OF    LITIGATION. 

curiae  very  opportunely  referred  him  to  a  statute  or 
a  decision  was  called  in  to  assist  him  in  private,  and 
now  the  delighted  Chancellor  had  in  his  service  the 
quickest  instead  of  the  most  languid  of  journeymen." 

This  faculty  of  rapid  and  accurate  work  is  indis- 
pensable to  the  good  lawyer.  For  all  the  won- 
derful correctness  of  his  judgments,  Lord  Eldon's 
fame  would  now  be  greater  had  he  been  less  slow  to 
decide  and  then  act.  Samuel  Smiles  in  his  charm- 
ing work,  entitled  Self-Help,  thus  illustrates  this  sub- 
ject :  "  Sir  Walter  Scott,  writing  to  a  youth  who 
had  obtained  a  situation  and  asked  for  his  advice, 
gave  him  in  reply  this  sound  counsel,  *  Beware  of 
stumbling  over  a  propensity  which  easily  besets  you 
from  not  having  your  time  fully  employed,  I  mean 
what  the  women  call  dawdling.  Your  motto  must 
be  Hoc  age.     Do  instantly  whatever  is  to  be  done.'" 

Of  course  there  must  be  the  precedent  reflection, 
and  rapid  and  quick  as  the  action  must  be,  the  law- 
yer must  feel,  when  it  is  over,  that  it  has  been  done 
with  complete  circumspection.  The  words  of  Burr 
who  was  as  prompt  to  decide  as  he  was  indefati- 
gable in  executing  his  decision,  are  w^isdom.  I 
transcribe  from  Mr.  Barton's  Life.  "  There  is  a 
maxim,"  said  he,  "  Never  put  off  till  to-morrow  what 
70U  can  do  to-day.  This  is  a  maxim  for  sluggards. 
/\.  better  reading  of  it  is,  Ncvc7'  do  to-day  zvhat  yon 


PREPARATION.  133 

can  as  zucll  do  to-7norrow,  because  something  may 
occur  to  make  you  regret  your  premature  action." 
David  Paul  Brown/  in  his  reprehension,  did  not 
do  justice  to  this  saying  of  Burr. 

To  sum  up  all  in  a  few  w^ords,  there  must  be 
prompt  action,  but  there  must  be  well  weighed  ac- 
tion ;  it  must  be  as  prompt  as  it  can  be  to  be  well 
weighed,  and  it  must  be  as  well  considered  as  it  can 
be  to  be  prompt. 

This  necessary  promptness  and  accurate  fore- 
thought can  only  be  had  by  the  preservation  of  cool- 
ness. Coolness  is  but  another  word  for  courage. 
These  are  wise  words  of  David  Paul  Brov/n  : 

"  By  all  means  in  all  circumstances  maintain 
your  composure ;  if  you  lose  that,  you  lose  all.  1 1 
asked  what  is  the  most  desirable  attainment  of  a 
lawyer,  we  should  say  com.posure.  A  wealthy  and 
venerable  gentleman  of  this  city,  whose  only  son 
kad  recently  been  admitted  to  practice,  called  upon 
us,  and  with  a  perfectly  natural  interest  in  the  future 
advancement  of  his  son,  inquired  what  course  wc 
would  recommend  in  order  to  his  success  at  the 
bar.  '  Your  son,'  was  the  reply,  *  has  had  an  excel- 
lent education  in  literature  and  in  law.  All  that  he 
will  require,  in  order  to  render  his  faculties  and 
learning  available,  is  composure.' 

'  The  Forum,  2  vol.  69. 


134'  '  CONDUCT    OF    LITIGATION. 

" '  Aye,'  said  the  anxious  parent,  *  but  how  is  that 
to  be  acquired.'  *  That,'  we  replied,  *  must  depend 
upon  himself,  and  upon  time  and  circumstances. 
He  must  learn  it  as  Peter  the  Great  learned  to  con- 
quer, by  being  flogged  and  defeated  over  and  over 
again,  deriving  instruction  from  every  overthrow. 
In  short,  he  must  let  no  man  be  master  of  his 
temper  but   himself.'" 

If  you  will  note  some  lawyers  in  their  prepara- 
tion, they  seem  always  to  be  fancying  the  scene  of 
the  trial.  This  poisons  all  of  their  labors.  They 
almost  remind  you  of  children  talking  to  them- 
selves while  building  air  castles  in  the  near  future. 
A  trial,  anticipated  and  prepared  for  in  this  spirit, 
will  most  generally  prove,  when  it  comes,  to  be  an 
air  castle.  The  lawyer  must,  in  the  preparation  of 
his  cases,  avoid  all  passion,  and  resolutely  turn  away 
from  the  visionary.  A  judge  impartial,  or  a  jury  not 
at  all  partaking,  it  may  be,  of  his  client's  passion  or 
his  own,  must  be  satisfied. 

The  manly  virtues  of  diligence  and  industry  are 
of  as  much  avail  in  the  law  as  in  any  other  walk  of 
life.  If  you  are  for  the  plaintiff,  you  must  indus- 
triously master  his  case  ;  if  for  the  defense,  you  must 
get  it  ready.  You  will  often  note  that  a  lawyer 
does  not  fully  understand  the  pleadings.  This  is  a 
most    inexcusable    fault.       They   are    accessible   to 


PREPARATION.  135 

everybody,  and   ean    always  be  learned  with    more 
facility  than  anything  else  in  the  case. 

And  patient  attention,  as  we  have  said  before, 
is  a  potent  virtue  •  in  a  lawyer.  In  this  day  and 
generation  everything  seems  to  have  grown  more 
definite.  Accuracy  and  definiteness  are  more  sought 
after  everywhere.  The  untrained  mind  can  not 
attain  them.  But  the  lawyer  must  always  show 
that  he  thoroughly  understands  his  case,  and  that  he 
can  with  exactness  apply  to  it  the  law,  which  he 
must  likewise  accurately  know.  I  suppose  that 
every  lawyer  of  some  practice  has  noted  how  rare  a 
talent  it  is  in  men  to  report  the  substance  of  any- 
thing accurately.  When  you  are  trying  a  case,  and 
the  evidence  has  developed  that  some  one  not 
thought  of  before  must  have  important  knowledge, 
and  you  send  your  client,  or  even  your  associate,  to 
sound  this  person  who  may  be  a  good  witness  for 
or  against  you,  you  will  still  do  well,  if  you  can,  to 
hold  a  brief  colloquy  with  him  before  you  swear 
him.  Some  listeners  hear  only  what  they  wish  to 
hear ;  and  this  is  a  large  class ;  and  still  a  larger 
class  misapprehend  what  they  do  hear.  The  flying 
nmiors  that  go  around  in  society  are  exaggerated 
instances.  They,  at  last,  in  their  most  grotesque 
form  and  in  the  widest  difference  from  the  truth,  are 
but  the   result  of  many   misapprehensions   concen- 


1-36  CONDUCT    OF    LITIGATION. 

trated.  Patient  attention  to  your  client  will  make 
you  understand  him  at  last, — by  patient  attention 
you  will  understand  the  version  of  a  witness,  the 
pleadings,  a  pile  of  documents,  the  case  of  your 
adversary,  and,  by  the  same  power,  you  will  time 
and  again  extricate  your  case  from  decisions  and 
apparent  constructions  of  statutes  when  it  had  long 
appeared  hopeless.  With  your  mind  concentrated 
on  your  case,  you  will  always  be  the  first  to  note  a 
blunder  of  your  adversary.  Your  client  pays  you 
to  take  advantage  of  all  that  he  makes.  And  so, 
too,  by  this  unremitting  looking  and  watching  you 
will  always  foresee  what  will  be  done,  and  what  is 
necessary  to  be  done. 

Then  let  the  lawyer  carry  his  cases  in  his  head. 
On  any  particular  one  he  should  be  able  to  undergo 
a  Socratic  cross-examination  at  any  time.  Socrates 
thought  no  man  master  of  a  subject  until  he  could 
discuss  it  from  every  point  of  view.  This  knowl- 
edge was  not  to  be  communicated  by  a  set  discourse. 
Every  man  must  acquire  it  for  himself.  It  exists 
only  in  the  head.  We  see  this  illustrated  in  the 
case  of  an  honest  and  intelligent  witness  under  a 
searching  cross-examination.  He  will  be  asked 
many  questions  he  has  never  anticipated,  but  he  will, 
if  he  keep  his  coolness,  answer  right,  and  his  whole 
answers  will  be  consistent.     So  long  as  he  relies  oi> 


PREPARATION.  137 

his  own  ]:nowledge,  he  can  not  be  made  to  contra- 
dict himself.  And  thus  a  lawyer  must  know  his 
case,  so  that  he  may  be  able,  at  once,  to  meet  any 
attack  of  his  adversary,  though  he  may  not  have 
,  anticipated  it.  He  will  be  able,  though,  as  soon  as 
he  understands  the  attack,  to  show  that  it  is  incon- 
sistent with  his  knowledge  of  the  case. 

The  grand  result  of  all  thorough  preparation, 
where  the  lawyer  has  been  patient,  attentive,  indus- 
trious, and  free  from  passion,  is  this  ready  and 
accurate  knowledge.  We  see  many  of  our  brethren 
groping  about,  as  it  were,  in  the  dark,  in  search  of 
something,  they  know  not  wiiat.  It  is  this  which 
they  are  almost  unconsciously  looking  for.  That 
lawyer,  w^ho  has  such  a  knowledge  of  his  case,  can 
only  be  put  down  by  equal  knowledge,  and  the  right 
opposed.  Then  he  should  not  complain.  He 
should  only  rejoice.  But,  in  intricate  cases,  he  who 
has  got  by  heart  the  details,  so  that  he  is  able  to 
present  them  all  from  points  of  view  innumerable, 
is  an  overmatch  for  an  adversary  who  only  has  a 
smattering  of  the  case,  though  the  right  is  strongly 
with  him.  How  does  this  victorious  knowledge 
come  ?  It  is  almost  character.  The  self-collected 
thorough-bred  lawyer,  exempt  from  all  vanity,  who 
saves  all  of  his  passion  for  the  jury,  who  hardily 
looks  any  unpleasant  anticipation   full    in  the  face 


138  CONDUCT    OF    LI  FIG  AT  ION. 

and  is  all  the  while  testing  in  cold  blood  the  san- 
guine representations  of  clients  and  their  partisans 
and  his  associates,  will  acquire  this  mastery  in  a  time, 
often  incredibly  short.  If  a  man  wishes  to  win  by 
trick  and  perversion,  he  will  study  trick  and  perver- 
sion,— if  he  is  one  of  those  over-sanguine,  who  can 
not  believe  that  any  disaster  can  overtake,  he  will 
build  perilously  on  hasty  assumptions, — but,  if  he 
really  understands  that  a  trial  is  a  thorough  discus- 
sion of  the  questions  made  therein  by  the  law  and 
the  evidence,  he  will  seek  to  have  the  requisite 
knowledge  for  that  discussion.  And  this  knowledge 
begets  the  "  vigorous  verdict-getting  counsel." ' 

How  empty  and  vain  are  the  talents  of  perver- 
sion, arrayed  in  a  respectable  court,  against  this 
knowledge.  The  great  lawyer  whom  I  sketched  at 
the  end  of  Chapter  III.  of  this  Book,  was  so  little 
solicitous  for  the  last  word,  that  he  would  never 
manoeuver  nor  wrangle  for  the  conclusion  of  the 
argument.  He  often  made  a  gift  of  it  to  his  adver- 
sary. But  it  was  a  world's  wonder  when  he  lost  a 
good  case.  His  knowledge  was  so  accurate,  thor- 
ough, and  ready,  of  any  case  that  he  was  trjang,  that 
no  misrepresentation  or  perversion  could  escape  him. 

*  Campbell's  Life  of  Lord  Brougham,  256  (I-ondon, 
1869).  'I'he  words  quoted  were  the  panegyric  of  Mr. 
Clarke,  leader  of  the  Midland  Circuit, 


PREPARATION.  139 

The  preparation  that  the  great  Rufus  Choate 
habitually  gave  his  cases,  should  be  ever  held  up 
before  the  young  lawyer.  The  following  is 
extracted  from  Mr.  Parker's  Reminiscences : 

"  And  yet,  what  laborious;  and  careful,  and  plod- 
ding preparation,  he  made  in  the   plainest  of  cases  ! 

"  When  occasion  demanded,  he  was  the  readiest 
of  men :  and  he  undoubtedly  did  enter  upon  cases 
without  much  preparation. 

"  But,  ordinarily,  his  preparation  was  elaborate. 
He  loved  to  exhaust  the  subject.  His  respect  for 
the  Bench  led  him  to  make  thorough  preparation  of 
the  law  of  his  case,  and  when  his  case  was  for  the 
jury,  he  remembered  the  twelve  who  were  to  pass 
upon  the  facts, — for  he  always,  as  he  said,  went  in 
for  the  verdict. 

"  Hence,  his  preparation  of  a  case  was  generally 
thorough. 

"  I  have  known  him  hold  two  consultations  with 
his  junior,  preparatory  to  a  hearing  in  the  probate 
court  on  some  motion  for  a  new  bond ;  and  I  have 
known  him  equally  elaborate  on  a  motion  to  amend 
some  interlocutory  decree  in  the  superior  court! 

"  Those  who  have  been  his  juniors  in  the  prep- 
aration and  trial  of  cases,  will  remember  how  he 
made  them  work." ' 

*  Reminiscences,  iii. 


140  CONDUCT    OF    LlTIGAriON. 

The  great  advocate's  biographer  quotes  Mr. 
Bell's  account,  which  we  transcribe  : 

"  Mr.  Choate's  method  of  preparing  his  cases 
for  trial  and  argument,  depended  so  much  upon  the 
varying  circumstances  of  the  cases,  that  it  is  very 
difiicult  to  say,  that  he  had  any  particular  plan. 
But  this  always  was  his  practice  v/hen  he  had  time 
for  it. 

"  If  for  the  plaintiff,  a  strict  examination  of  all 
the  pleadings,  if  the  case  had  been  commenced  by 
others,  was  immediately  made,  and  so  far  as  practica- 
ble, personal  examination  of  the  principal  witnesses, 
— accurate  study  of  the  exact  questions  raised  by 
the  pleadings,  and  a  thorough  and  exhaustive  prep- 
aration of  all  the  law  upon  these  questions.  This 
preparation  completed,  the  papers  were  laid  aside 
until  the  day  of  trial  approached.  At  that  time  a 
thorough  re-examination  of  the  facts,  law,  and  plead- 
ings, had  to  be  made.  He  was  never  content,  until 
everything  which  might,  by  possibility,  bear  upon 
the  case,  had  been  carefully  investigated,  and  this 
investigation  had  been  brought  down  to  the  last 
moment  before  the  trial. 

"If  for  the  defence,  the  pleadings  w^ere  first 
examined  and  reconstructed  if  in  his  judgment 
necessary,  and  as  careful  an  examination  of  the  law 
made  as  in  the  other  case. 


PREPARATION.  141 

"In  his  preparation  for  the  argument  of  a  ques- 
tion of  law.  he  could  never  be  said  to  have  finished 
it,  until  the  judgment  had  been  entered  by  the 
court.  It  commenced  with  the  knowledge,  that 
the  argument  was  to  be  made ;  and  from  that  time 
to  the  entr}'  of  the  judgment,  the  case  never  seemed 
to  be  out  of  his  mind;  and  whenever  a  thought 
appropriate  to  the  case  occurred  to  him,  it  was  noted 
for  use.  It  Vv^ould  often  happen,  that  the  case  was 
ncarl}^  reached  for  argument  at  one  term  of  the 
court,  every  possible  preparation  having  been  made, 
and  the  brief  printed;  yet  the  term  v/ould  end, 
and  the  case  not  come  on.  The  former  preparation 
then  m.ade  but  a  starting-point  for  him.  At  the 
next  term  a  fuller  brief  appeared ;  and  this  might 
happen  several  times.  The  finished  brief  of  the 
evening  had  to  be  altered  and  added  to  in  the  morn- 
ing ;  and  it  frequently  went  into  the  hands  of  the 
court  with  the  undried  ink  of  his  last  citations.  If, 
after  argument,  a  case,  uncited  then,  Vv'as  discovered, 
or  if  a  new  view  of  it  occurred  to  him,  the  court 
was  instantly  informed  of  it. 

"  And  so  in  the  trial  of  a  case  at  nisi  priiis. 
Every  intermission  called  for  a  full  examination  of 
every  law-book  which  could  possibly  bear  upon 
questions  already  before  the  court,  or  which  he  pro- 
posed to  bring  before  it.     No  difficulLy  in  procur- 


142  CONDUCT    OF    LITIGATION. 

ing-  a  book  which  treated  upon  the  questions  before 
him,  ever  hindered  him  ;  it  was  a  mere  question  of 
possibility." ' 

Again  his  biographer  says  of  Choate  : 
"  In  the  preparation  of  a  case,  he  left  nothing  to 
chance,  and  his  juniors  sometimes  found  themselves 
urged  to  a  fidelity  and  constancy  of  labor,  to  which 
they  had  not  been  accustomed." 

Of  Aaron  Burr,  one  of  the  most  successful  of 
all  lawyers,  Mr.  Parton,  in  his  entertaining  (and 
almost  romantic)  life,  says:  "  In  preparing  his  cases 
for  trial,  he  was  simply  indefatigable.  While  there 
was  an  authority  to  be  examined,  w^hile  there  was 
evidence  to  be  procured,  while  there  was  an  expe- 
dient to  be  devised,  his  efforts  were  never  relaxed. 
And  he  gave  no  rest  to  his  adversary,  pursuing  him. 
with  notices,  motions,  and  appeals,  improving  every 
advantage  and  exhausting  all  means  of  annoyance  ; 
until,  from  very  weariness  and  despair,  sometimes, 
the  enemy  has  capitulated.  Colonel  Burr  not 
only  labored  himself  to  the  uttermost  of  the  pow- 
ers of  man,  but  he  had  the  art  of  exacting  from  his 
assistants  an  equal  diligence.  There  was  no  resist- 
ing his  requirements.  Assistant  counsel  would 
receive  notes  from  him  at  midnight,  when  they 
were  asleep,  demanding  instant  replies,  wdiich 
Brown's  Life,  394,   et  stq. 


PRE  PARA  TJON.  143 

obliged  the  drowsy  men  of  law  to  refer  to  author- 
ities and  examine  papers.  On  the  day  cf  trial,  he 
had  his  evidence,  arguments,  and  authorities,  mar- 
shaled in  impenetrable  array.  Every  possibility  had 
been  provided  for.  No  man  at  the  bar  could  ever 
boast  of  discovering  a  fiaw  in  his  preparation,  or  of 
carrrying  a  point  against  him  by  surprise." ' 

Non-preparation,  or  hasty  preparation,  against 
thorough  preparation,  is  the  mob  against  regular 
troops,  and  another  example  of  empirical  knowl- 
edge matched  v/ith  scientific  and  rational.  Good 
luck  and  fortune  will  som.etimes  lead  the  unprepared 
to  success,  but  in  the  average  and  main  he  will  be 
beaten,  and  hardly  understand  why  he  has  been 
beaten. 

We  must  guard  the  reader,  however,  against 
conceiving  us  to  advise  him,  that  all  things  can  be 
anticipated  and  provided  for.  We  mean  no  such 
thing.  The  lawyer  approaches  the  trial  just  as  the 
general  goes  to  the  field,  stored  with  knowledge 
of  as  many  particulars  appertaining  to  the  business 
in  hand  as  can  be  acquired,  in  order  to  act,  and  be 
ready  out  of  this  knowledge  to  meet  with  new 
movements  of  his  own,  any  of  his  adversary's. 

Before  closing,  we  have  one  thing  more  to  say. 
No  adversary  is  so  weak  as  he  who  fumes  with 
'  Parton's   Life,    147. 


144  CONDUCT    OF    LITIGATION. 

impatience  at  any  opposition  or  hint  of  danger 
Some  lawyers  seem  to  believe  that  Providence 
sends  them  nothing  but  good  cases,  and  resistance 
infuriates  them  as  though  the  adversary  were  attack- 
ing the  foundations  of  all  justice.  But  the  good  law- 
yer, the  veteran  of  a  thousand  fights,  the  cool- 
headed  champion,  who  has  time  and  again  won 
against  odds,  stands  on  his  knowledge  of  the  case 
as  he  sees  it  from  his  side,  and  he  never  feels  sure  of 
victory  till  he  has  conquered.  His  preparation  nor 
watchfulness  never  cease  till  the  finale  of  the  case. 
His  own  ingenuity  teaches  him  that  the  resources 
of  .  the  other  side  may  have  never  been  rightly 
estimated,  and  it  will  be  the  last  thing  that  he  will 
do  in  the  world  to  underrate  the  case  of  his  adver- 
sary. And  he  leans  not  on  providence  nor  good 
luck,  nor  the  manifest  justice  of  his  case.  He 
stands  on  the  law  and  the  evidence,  as  he  believes 
they  will  affect  judge  and  jury.  He  essays  to 'have 
combinations  superior  to  those  of  the  other  side. 


PLAN    OF    CONDUCT.  145 


CHAPTER    VIII. 


PLAN    OF    CONDUCT. 


We  have  again  to  remind  the  reader  who  has 
noticed  the  heading  of  this  chapter,  how  awkward 
it  is  to  be  turning  that  into  a  series  which  is  non- 
serial  in  its  nature.  The  plan  of  conducting  the 
attack  or  defense  has  been  gradually  shaping  itself 
in  the  mind  of  the  lawyer,  through  the  whole 
investigation  of  the  case.  He  has  caught,  at 
different  times,  glimpses  of  all  of  its  several  features, 
and  his  conception  of  the  whole  and  its  parts  has 
grown  more  and  more  definite  as  he  has  gone  along. 
Yet  it  is  but  right  to  put  off  its  consideration  to 
the  last.  Its  v/hole  details  should  never  be  defin- 
itely determined,  until  the  lawyer  has  assuredly  sat- 
fied  himself,  that  his  mastery  of  the  case  is  thorough, 
and  that  he  well  grasps  every  point  of  controversy. 
Then,  and  not  till  then,  will  he  put  the  last  touches 
to  that  which  has  been  nearly  finished,  it  may  be 
long  ago. 

The  general,  before  he  takes  the  field,  makefi 
his  plan  of  the  campaign  ;  and  so,  by  a  metaphor 
which  will  not,  we   hope,  be  deemed  too   bold,  we 


146  CONDUCT    OF    LITIGATION. 

can  speak  of  the  plan  of  a  lawyer's  attack  or  defense. 
In  the  talk  of  the  bar,  we  have  another  word.  Says 
one  of  his  adversary,  "  I  do  not  yet  see  what  is  his 
line."  Thus  Ciioate  is  reported  by  Mr.  Parker,  as 
saying  of  Prof  Webster's  counsel,  that  they  "  should 
settle  on  their  certain  line  of  defense,  etc."  The 
word  however,  which  we  use  is  by  far  the  best  that 
now  occurs  to  us,  and  is  very  supetior  to  the  more 
commonly  used  word,  "line,"  which  is  a  metaphor 
almost  unintelligible. 

In  common  with  all  other  business,  litigation 
should  be  conducted  on  the  plan  that  promises  the 
most  and  risks  the  least.  The  prudent  speculator 
divides  his  risks ;so  with  the  Insurance  Companies; 
so  with  the  general  ;  and  it  is  the  same  with  the 
the  farmer,  who  diversifies  his  crops  and  thus  multi- 
plies the  sources  of  income  and  diminishes  the 
chances  of  loss. 

The  essential  of  a  good  plan  of  conduct  of  a 
case,  is  that  it  embrace  all  the  materials  of  your  side, 
whether  they  be  law  points  or  combinations  of  facts, 
— such  materials  being  logically  arranged  in  their 
true  natural  order  to  support  your  own  intended  ag- 
gressive or  defense,  and  to  anticipate  the  operations 
of  the  adversary,  in  order  to  overwhelm  or  to  beat 
him  back.  Or  wc  may  define  more  shortly,  that  the 
plan  of  conduct  is  your  intended  method  of  using 


PLAN    OF    CONDUCT.  147 

the  results  of  your  preparation  to  vanquish  your 
adversary.  Napoleon  said  that  the  whole  of  the  art 
of  war  was  in  being  the  stronger  on  a  certain  point. 
The  whole  of  the  art  of  conducting  litigation  is  like- 
wise in  being  the  stronger  on  a  certain  point.  The 
plan  of  conduct  marshals  for  this.  At  Marathon 
the  Persian  army,  compared  with  the  Greeks,  v/as  as 
the  sands  of  the  sea-shore.  The  Greek  commander, 
with  his  handful  of  free-born  and  his  handful  of 
slaves,  came  out  confidently  from  behind  the  walls 
and  offered  battle  in  the  open  field.  He  did  not  dis- 
pose, as  a  mediocre  general  would  have  done,  his  best 
troops,  but  he  posted  his  slaves  against  the  formida- 
ble Persians  and  Sacians  in  the  center  who  vv^cre 
the  chief  reliance  of  his  enemy,  w^hile  he  arrayed 
on  each  wing  those  free-born  volunteers  who,  we  are 
told, were  aflame  with  an  incredible  ardor  of  fight- 
ing. There  they  faced  countless  hosts  of  undis- 
ciplined savages,  who  had  been  put  where  they  now 
were  by  the  enemy — not  anticipating  the  novel  dis- 
positions of  Miltiades — to  only  be  out  of  the  way. 
The  Greeks  came  forward  on  the  run,  and  the  two 
armies  closed.  The  massive  body  of  Persians  and 
Sacians,  with  resistless  momentum,  broke  the  en- 
countering line,  and  at  once  was  chasing  fugitives 
everywhere  in  its  front.  But  the  free-born  Greeks, 
counting  the  numbers  before  them  only  as  so  many 


148  CONDUCT    OF    LITIGATION. 

tokens  of  vxtoiy,  were  likewise  advancing,  spreading 
panic  and  flight  before  them.  The  Persian  center 
found  that  it  had  spent  its  force  in  destroying  a  few 
of  its  feeble  opponents,  and  in  trying  to  catch  the 
rest.  Out  of  breath,  it  now  saw  two  victorious 
Greek  armies  in  its  rear,  and  all  of  its  supports 
going  tx)  pieces.  The  world  knows  the  great  battle 
by  heart.  The  Persians  and  Sacians  also  fled,  and 
the  immense  horde  of  invaders  paused  not  in  their 
camp,  but  were  beaten  to  their  ships. 

Many  generations  have  meditated  over  the 
battle,  and  they  discover  no  better  dispositions  that 
could  have  been  made  of  the  Greeks.  Had 
Miltiades  ranged  his  choice  men  against  the  center, 
he  would  have  been  crushed  at  once.  But,  with  a 
genius  to  which  all  subsequent  civilization  should 
do  reverence,  he  evaded  the  threatened  destruction, 
and  indirectly  overthrew  what  he  dared  not  directly 
meet.  His  plan  was  perfect — that  is,  it  contained  all 
of  his  strength  rightly  marshaled  to  sustain  itself 
and  meet  the  formation  and  plan  of  the  enemy. 
His  rapid  charge  to  engage  was  a  divine  part  of  his 
plan.  It  was  a  mask  that  concealed  his  prudent 
dispositions,  and  left  no  time  to  the  enemy  to  con- 
form his  own  to  meet  them. 

We  will  give  the  plan  of  another  battle — that  of 
Epaminondas  at  Leuctra.     Instead  of  evading  the 


PLAN  OF  CONDUCT.  149 

strength  of  the  enemy,  he  met  it  with  a  superior 
force  in  front.  His  army  appears  to  have  been 
smaller  in  numbers  than  that  of  the  Spartans  and 
their  allies,  opposing.  The  Spartans  had  been  the 
terror  of  Greek  and  barbarian,  and  Epaminondas, 
rightly  judging  that  the  main  battle  would  be 
offered  by  these  redoubted  veterans,  held  back  the 
rest  of  his  line,  and  resistlessly  bore  down  the 
charging  Spartan  phalanx  by  a  counter  charge  of 
the  Sacred  Band,  backed  and  propelled  by  a  column 
of  fifty  shields  from  behind — a  formation  as  superior 
to  that  of  his  enemy  as  an  iron-clad  is  superior  to  a 
wooden  ship  of  equal  guns. 

The  circumstances  of  each  general  show  each 
plan  to  have  been  proper.  Miltiades  w^as  right  to 
dodge  the  first  attack  of  the  massive  center,  in  or- 
der to  have  it  at  more  advantage  afterwards,  and 
Epaminondas  was  right  to  engage  at  once  the 
chosen  force  of  his  enemy  in  direct  conflict. 

But  the  reader  must  not  consider  these  grand 
instances  as  more  than  distant  analogies.  The 
variety  of  warfare  far  exceeds  that  of  litigation.  To 
say  nothing  of  anything  else,  the  very  ground  of  the 
battle-field  is  in  itself  always  a  new  study,  while  the 
lawyer  generally  meets  the  same  human  nature  in 
the  jury-box  and  on  the  bench. 

As  we  have  already  said,  cases  vary  greatly  in 


ISO  CONDUCT    OF    LITIGATION. 

the  number  of  points  of  controversy  which  they 
present.  After  the  maturest  study,  some  will  be 
found  to  consist  of  but  a  single  unavoidable  issue 
Here  the  plan  needs  no  study,  for  it  is  apparent  that 
the  contest  is  to  be  only  one  of  strength  and  not  of 
skill.  But  in  the  great  majority  of  cases  a  bundle  of 
controversies,  as  it  were,  will  often  be  found.  If  you 
observe  the  average  of  trials,  you  will  seldom  see  one 
involving  much  property  or  important  rights  turn 
on  a  single  question.  You  will  generally  find  both 
the  plaintiff  and  defendant  instinctively  seeking  to 
increase  each  his  favorable  chances  by  presenting 
more  than  one  point  to  be  decided,  and  by  making 
a  skillful  arrangement  of  these  points. 

To  make  our  meaning  plainer,  we  will  now  give 
instances.  And  we  will  begin  with  some  of  the  less 
complex  plans.  The  first  is  Mr.  Bell's  narrative 
quoted  by  Prof  Brown,  the  entertaining  biograoher 
of  Choate  : 

"  He  had  a  plan  for  the  trial  of  every  case  to 
which  he  clung  from  the  start,  and  to  which  every- 
thing bent.  That  plan  often  appeared  late  in  the 
case,  perhaps  upon  filing  his  prayer  to  the  court  for 
special  rulings  to  the  jury,     .     .     . 

"In  an  insurance  case  wc  were  for  the  plaintiff. 
A  vessel  had  been  insured  for  a  year,  with  a  war- 
ranty that  she  should  not  go  north  of  the  Okhotsk 


PLAN    OF    CONDUCT.  151 

Sea.  Within  the  year  she  was  burned  north  of  the 
limits  of  the  Okhotsk  Sea  proper,  but  south  of  the 
extreme  limits  of  some  of  that  sea's  adjacent  gulfs. 
The  defendant  set  up  that  there  was  no  loss  within 
the  limits  of  the  policy ;  and  numerous  witnesses 
had  been  summoned  by  both  parties — on  our  side,  to 
show  that  by  merchants  the  Okhotsk  Sea  was  con- 
sidered to  include  the  bays ;  on  the  other  side,  to 
prove  the  contrary.  A  protracted  trial  was  expected, 
and  everything  had  been  prepared.  As  we  were 
walking  to  the  court-house,  he  said,  '  Why  should 
we  prove  that  we  were  not  north  of  that  sea  ?  Why 
not  let  them  prove  that  we  were  ?  What  do  you 
think  of  it .?  '  '  It  seems  to  be  the  right  way,  cer- 
tainly,' said  I.  '  Let  us  do  it ;  open  the  case  on  that 
idea.'  I  did  so,  and  put  on  the  mate  to  prove  the 
burning  at  a  certain  time  within  the  year.  No 
cross-examination  followed,  and  we  rested  our  case. 
The  other  side  were  dumbfounded.  They  had  ex- 
pected that  we  should  be  at  least  two  days  putting 
in  our  case  on  the  other  theory,  and  had  no  wit- 
nesses at  hand.  They  fought  our  plan  stoutly,  but 
the  court  was  with  us,  and  they  were  obliged  to 
submit  to  a  verdict  in  our  favor.  The  case  lasted 
one  hour." 

We    give   another   instance    of    a    most     simple 
plan  : 


152  CONDUCT    OF    LITIGATION. 

A  local  statute  allowed  a  certain  number  of 
years  of  adverse  possession  of  land  under  a  bona  Jide 
claim  of  right  to  give  the  occupier  a  prescriptive 
title,  and  the  defendant  had  occupied  for  three  times 
the  length  of  the  statutory  term.  The  plaintiff,  who 
was  without  doubt  the  true  owner,  if  this  formidable 
prescription  set  up  could  be  overcome,  brought  his 
action  of  ejectment  against  the  occupier,  and  after 
making  out,  as  he  easily  could,  "2^  prima  facie  case  of 
title,  closed  his  evidence.  The  defendant  then 
proved  his  long  occupation  by  many  witnesses,  him- 
self among  the  number ;  but  by  cross-examination 
knowledge  by  the  defendant  of  the  plaintiffs  title, 
and  his  recognition  of  the  same,  was  clearly  shown, 
at  a  time  not  long  preceding  the  commencement  of 
the  occupation,  and  many  other  facts  were  brought 
out,  which,  taken  together  with  the  knowledge  and 
recognition,  completely  disproved  the  alleged  bona 
fides  of  the  adverse  possession.  The  defendant's 
counsel  seemed  to  anticipate  that  the  point  of  the 
plaintiff  would  be  to  show  that  he  had  been  under  a 
certain  disability,  and  thus  avoid  the  prescription,  and 
to  meet  this  the  defendant  was  well  prepared — but 
the  plaintiff's  counsel  had,  by  closely  attending  to 
his  business,  found  out  that  he  could  make  the  proof 
already  mentioned  by  the  witnesses  of  his  adver- 
.■>ary. 


PLAN    OF    CONDUCT.  153 

These  are  simple  plans,  but  such  are  not  there- 
f(jre  to  be  despised.  The  greatest  results  and  the 
most  unexpected  successes  often  follow  the  execu- 
tion of  a  plan  so  simple,  that  then  all  the  world 
wonders  how  there  could  ever  have  been  any  doubt 
The  plan  of  battle  at  Leuctra  was  no  more  in- 
tellectual exertion  than  that  last  narrated.  The 
twenty-one  years'  adverse  occupation  looked  as 
formidable  to  every  one  as  the  Spartan  prowess 
seemed  to  all  Greece — and  yet  when  we  coolly  con- 
template what  was  done  to  both,  we  see  that  the 
unexpected  victories  were  no  great  cause  of  boast- 
ing. An  over-confident  adversary  was  merely 
shown  in  each  case  that  what  he  thought  was  his 
resistless  strength,  was  but  a  shell,  imposing  its 
appearance  for  substance  upon  people  who  did  not 
choose  to  look  closely. 

The  grand  element  of  all  true  courage — that 
greatness  of  mind  which  has  led  safely  out  of  what 
seem  the  most  complicated  involvements  of  peril — is 
simply  daring  to  look  at  things  coolly  for  yourself, 
and  with  your  own  eyes.  When  this  hardy  inspec- 
tion and  undaunted  gaze  are  coupled  with  the  nature 
which  never  acts  save  with  an  intelligent  purpose, 
there  is  formed  at  once  the  basis  of  the  genius  which 
leads  to  success  on  the  held  and  in  the  forum 
Nine-tenths  of  what  appeared  difficulty  ins'iipfirablc 


r54  CONDUCT    OF    LITIGATION. 

or  a  maze  of  complications,  turn  out  to  be  mere 
shadows,  portentous  only  to  the  imagination,  as 
*  black  vesper's  pageants  "  are  to  children. 

But  the  circumstances  of  some  cases  are  com- 
plex, and  coerce  the  adoption  of  a  plan  correspond- 
ingly complex.     We  will  give  an  instance  : 

An  old  man,  some  years  before  his  death,  made 
a  voluntary  conveyance  of  a  parcel  of  land  to  one  of 
his  sons.  After  the  death  of  the  father,  intestate, 
the  land  was  sold  in  bankruptcy  as  the  property  of 
this  son,  and  was  bought  by  A.  At  this  sale  notice 
was  given  by  an  agent  of  the  creditors  of  the  de- 
ceased father,  that  they  claimed  that  the  conveyance 
to  the  son  was  void  as  against  them,  because  made 
with  intent  by  the  father  to  evade  the  payment  of 
his  debts,  and  also  because  of  his  mental  incapacity 
to  make  the  deed  at  the  time.  The  bankrupt  was 
then  a  party  defendant  to  a  bill  brought  by  the 
creditors  of  the  intestate,  and  he  had  answered  the 
same,  insisting  on  the  validity  of  the  deed  of  his 
father.  This  sale  in  bankruptcy,  and  the  purchase 
by  A,  was  before  the  final  decree  in  the  bill  men- 
tioned. A  was  put  into  possession,  and  the  repre- 
sentative of  the  intestate,  who  claimed  to  be  a 
receiver,  recognized  his  right  to  the  land.  Some 
weeks  afterwards  a  decree  was  had  in  the  bill, 
authorizing  a   sale    of  all   the   property  of  the   in- 


PLAN    OF    CONDUCT.  155 

testate,  including  the  parcel  sold  in  bankruptcy  at 
private  sale  by  this  so-called  receiver.  The  receiver, 
who  had  been  pretending  to  hold  the  land  since  the 
sale  in  bankruptcy  under  A,  as  A's  agent,  sold  it 
without  A's  knowledge,  and  put  B,  who  purchased, 
into  possession,  thereby  ousting  A.  The  receiver 
pretended  to  be  acting  under  the  decree.  A 
brought  ejectment  against  B,  and  his  proof  is  ar- 
ranged to  show  his  plan  of  attack. 

1.  Pie  proved  his  possession  under  his  purchase 
in  bankruptcy. 

2.  He  then  showed  title  in  the  intestate,  and  his 
voluntary  conveyance  of  the  same  to  the  son,  after- 
wards bankrupt :  when  he  rested.  But  after  the 
defendant  had  put  in  his  evidence,  the  plaintiff  re- 
plied. 

3.  He  met  the  attack  on  the  voluntary  deed 
with  much  evidence  of  mental  capacity,  and  many 
circumstances  rebutting  fraud,  and  also  he  showed 
that  all  of  the  heirs-at-law  had,  in  writing — which  he 
claimed  to  have  the  effect  of  a  deed — conveyed  this 
land  to  the  son  mentioned— so  that  if  the  deed  of 
the  father  were  void,  still  the  son  had  the  title  of  the 
heirs-at-law,  on  whom  the  title  of  land  devolves  on 
the  death  of  the  ancestor. 

4.  Pie  then  put  in  a  pertinent  record,  which  he 
contended   showed   that   the    alleged    receiver   was 


156  CONDUCT    OF    LITIGATION. 

never  validly  appointed,  certain  requisites  of  a 
statute  not  having  been  complied  with.  When  this 
record  was  carefully  examined,  there  was  little  doubt 
of  the  correctness  of  his  position. 

This  plan  exhausted  every  resource  of  his  evi- 
dence. If  A  could  maintain  the  validity  of  the 
voluntary  conveyance, — that  is,  that  it  was  not 
fraudulent,  and  that  the  father  had  capacity  to  make 
it, — his  purchase  was  undoubtedly  good.  The  evi- 
dence on  this  point  was  very  contradictory. 

Then,  if  defeated  here,  if  he  could  maintain  his 
position  that  he  had  the  title  of  the  heirs-at-law,  he 
was  again  on  his  feet,  and  on  firm  ground  for  the 
encounter.  The  jury  might  believe  the  voluntary 
conveyance  fraudulent  or  void,  by  reason  of  the 
mental  incapacity  of  the  father — yet  if  they  were 
told  from  the  bench  that  the  writing,  claimed  to  be 
a  deed  from  the  heirs-at-law,  was  a  valid  deed,  then 
the  position  of  the  defendant,  standing  on  the  invali- 
dity of  the  voluntary  conveyance,  was  turned.  The 
character  of  the  writing,  claimed  to  be  the  deed  of 
the  heirs-at-law,  was  debatable. 

But  if  the  plaintiff  failed  to  support  the  deed  of 
the  father,  and  what  he  claimed  to  be  the  deed  of 
the  heirs,  though  he  could  no  longer  show  title  to 
the  premises  in  dispute,  he  could  still  recover  on  his 
prior  possession,  provided  he  established  the  inval- 


PLAN    OF    CONDUCT.  157 

idity  of  the  receiver's  appointment.  Here  the  plain- 
tiff appeared  impregnable.  The  statute  had  not 
been  complied  with.  The  appointment  was  invalid. 
The  purchaser,  therefore,  who  had  ousted  A,  was 
a  mere  tresspasser.  And  A  could  recover  of  him 
upon  proof  alone  of  his  possession,  such  possession 
being,  as  it  \^?iS,  prima  facie  legal. 

The  I  St  and  3d  parts  of  the  plan  were  added 
last  in  the  preparation,  and  the  4th  itself  was  not 
thought  of  until  long  after  the  action  had  been 
brought.  It  was  only  made  to  appear  by  a  careful 
perusal  of  a  voluminous  and  almost  illegible  record. 
When  the  suit  was  brought,  A  relied  entirely  on 
the  validity  of  the  voluntary  deed,  and  his  purchase 
before  the  decree,  which  has  been  mentioned. 

I  have  been  particular  to  set  forth  this  plan  in 
detail,  for  it  is  worth  much  to  illustrate  the  different 
matters  already  treated  ol  In  the  first  place,  it  is 
well  to  observe  that  the  plaintiff's  case  involved 
questions  of  law  as  well  as  of  fact.  The  character 
of  the  writing,  claimed  to  be  a  conveyance  of  the 
title  of  the  heirs,  was  purely  a  question  of  law  ;  and 
so  was  the  question  of  the  validity  of  the  appoint- 
ment of  the  receiver.  The  other  questions  were  for 
the  jury,  though  under  the  direction  of  the  court  as 
to  law.  Thus  the  court  would  tell  the  jury  that  if 
the  father's  conveyance  was  found   by  them   to  be 


158  CONDUCT    OF    LITIGATION. 

ip'/alid,  then  it  was  for  them  to  find  if  the  plaintiff 
had  made  out  his  case  of  prior  possession  by  credible 
evidence.  So,  too,  the  court  would  direct  the  juiy 
to  find  the  voluntary  conveyance  valid  or  not,  as 
the  evidence  dictated. 

If  the  plaintiff's  positions  were  all  right,  he  had 
two  grounds  of  recovery,  to  wit,  his  prior  legal 
possession  and  the  title  of  the  intestate  conveyed  to 
his  son.  If  the  defendant  overcame  the  voluntary 
deed,  then  the  plaintiff  might  again  have  two 
grounds  of  recovery,  to  wit,  the  possession  already 
mentioned,  and  the  writing  claimed  to  be  a  convey- 
ance of  the  heirs-at-law  to  the  son. 

But  if  he  failed  to  maintain  the  validity  of  the 
conveyance  of  the  father  and  that  alleged  of  the 
heirs,  yet  when  he  demonstrated  the  invalidity  of 
the  appointment  of  the  receiver,  he  was  sure  to  re- 
cover, as  his  prior  legal  possession  was  scarcely  dis- 
puted. 

So,  then,  his  attack  on  the  validity  of  the  appoint- 
ment of  the  receiver  was  his  strongest  ground. 
If  he  made  this  good,  there  was  no  possible  chance 
left  to  the  adversary  ;  if  he  failed,  the  controversy 
was  at  least  doubtful.  Perhaps  it  should  be  said 
that  the  probabilities  would  then  be  against  him. 
In  military  language,  then,  this  question  of  the  vali- 
dity of  the    appointment  of  the    receiver   could    be 


FLAX    OF    CONDUCT.  159 

called  the  key  to  the  field.  The  plaintiff's  counsel 
was  right,  therefore,  in  more  carefully  meditating 
this  attack  than  any  other  part  of  his  preparation. 
It  was  the  real  turning-point  of  the  case,  and  many 
parts  of  a  long  record  had  to  be  put  rightly  to- 
gether to  show  the  invalidity.  Pie  demonstrated 
this  invalidity,  and  then  won  without  further  effort. 
His  adversary  had  taken  the  validity  for  granted, 
and  had  carefully  essayed  to  get  the  preponderance 
of  evidence  on  the  issues  as  to  the  deed  of  the  in- 
testate. He  was  struck  with  astonishment  when 
the  plaintiff's  plan  was  disclosed,  and  was  manifestly 
taken  by  surprise. 

It  is  further  to  be  remarked  that  this  plan  not 
only  combined  every  point  of  the  plaintiff's  claim, 
but  it  had  the  further  merit  of  completely  anticipa- 
ting and  providing  against  the  defendant's  case. 

We  are  now  ready  for  an  analysis  of  different 
plans.  And  they  will  be  found,  on  reflection,  fewer 
than  the  reader  supposes. 

There  are,  I  believe,  but  two  sorts  of  simple 
plans,  that  is,  of  plans  for  single  issues.  The  first 
is  where  a  plain  and  apparent  issue  of  fact  or  of  law 
is  presented  by  one  side  and  accepted  by  the  other. 
Thus  the  plaintiff  may  say  that  the  defendant  owes 
him  the  money  claimed  on  a  contract  declared  upon. 
The  defendant,  if  he  deny  such  contract,  accepts  the 


j6o  conduct    of    litigation. 

issue  of  fact  tendered,  and  that  party  having  the  pre- 
ponderance of  evidence  is  entitled  to  the  verdict.  Or 
the  defendant  may  admit  the  contract  as  set  out  in 
the  plaintiff's  pleadings,  but  may  urge  that  it  ap- 
pears to  be  illegal  on  its  face.  Here,  then,  an  issue 
of  law  is  presented,  which  will  be  settled  from  the 
statute-book  or  other  pertinent  authority.  These 
instances  are  evidently  similar  in  nature — for  neither 
side  is  surprised ;  and  the  contest  is  a  fair  and  pre- 
meditated trial  of  strength. 

But  the  second  sort  of  simple  plan  is  where  the 
issue  presented  is  refused,  and  another  presented,  on 
which  you  are  superior  to  the  adversary.  There  may 
nearly  always  in  this  be  somewhat  of  surprise,  if  due 
secrecy  is  observed.  Mr.  Parton  tells  of  Aaron 
Burr  an  instance  which  will  illustrate  both  the 
evasion  and  susprise  spoken  of:  "He  delighted  to 
surprise  his  adversary,  to  lay  an  ambuscade  for  him, 
and  carry  a  case  by  an  ingenious  stroke,  before  the 
other  side  could  recover  their  self-possession.  It  is 
related  that  in  an  ejectment  suit  to  recover  a  valua- 
ble house  in  New  York,  the  opposing  counsel  had 
expended  their  whole  strength  in  proving  the  gen- 
uiness  of  a  will,  supposing  of  course  that  that  was 
the  only  point  susceptible  of  dispute.  What  was 
their  surprise  to  find  that  Burr's  main  attack  was 
against  the  authenticity  of  an  ancient  deed,  one   of 


PLAN    OF    CONDUCT.  i6i 

the  links  of  the  title,  which,  having  never  before 
been  disputed,  had  been  provided  with  merely  for- 
mal  proof.  The  jury  pronounced  the  deed  a  forgery, 
and  Burr's  client  lived  and  died  in  possession  of 
the  property.  Two  courts  have  since  pronounced 
the  deed  authentic."  This  kind  of  plan  resembles 
the  turning  manoeuvres  of  warfare,  by  v/hich  an 
offered  battle-ground  is  declined,  and  an  engag<"ment 
forced  on  other.  And  it  may  apply  to  issues  of  law 
as  well  as  to  issues  of  fact. 

I  witnessed  once  the  trial  of  a  case  brought  by 
some  shippers  against  a  railway  to  recover  back  an 
alleged  overcharge  by  the  railway.  The  suit  was 
brought  in  the  county  where  the  produce  had  been 
shipped,  but  the  charges  had  been  paid  in  a  distant 
county  by  the  factor  of  the  shippers.  The  counsel 
for  the  railway  demurred  on  the  ground  that  it  ap- 
peared that  the  court  had  no  jurisdiction,  the  statute 
saying  that  suits  should  be  brought  against  railways 
in  the  county  where  the  contract  was  mad<^  He 
argued  that  if  the  railway  was  liable  for  the  over- 
charge to  the  shippers,  it  was  upon  the  contract  im- 
plied by  the  law  to  refund  the  illegal  exaction,  and 
that  as  this  overcharge  was  paid  in  the  other  county, 
the  contract  was  implied  or  made  therein.  The 
plaintiff's  counsel  conceded  in  reply  that  he  might 
have  sued  in  the  distant  county  on  the  implied  con- 


i62  CONDUCT    OF    LITIGATION. 

tract,  but  he  averred  that  the  law  had  implied  an- 
other contract  for  his  benefit,  which  was  that  the 
railway  would  not  charge  above  the  chartered  rates, 
and  that  this  contract  was  implied — that  is,  made — 
in  the  county  where  the  produce  was  received,  and 
that  the  gist  of  his  action  was  for  a  breach  of  this 
contract.  Now,  however  the  reader  may  think  the 
law  to  be,  this  dodge,  as  it  were,  of  the  plaintiff's 
counsel  will  illustrate  that  what  I  have  said,  viz.,  that 
issues  of  law  presented  may  be  evaded  and  others 
presented. 

The  second  sort  of  plans  I  cannot  better  describe 
than  to  say  that  they  embrace  more  than  one  issue  or 
point  of  controversy.  They  may  present  both  ques- 
tions of  fact  and  questions  of  law,  and  they  may 
directly  meet  the  issues  raised  by  the  other  side,  or 
dodge  them,  as  we  have  suggested.  The  same  plan 
may  directly  meet  the  issue  on  some  of  the  points 
of  controversy,  and  evade  it  on  others.  The  instance 
we  have  already  given  in  this  chapter  of  the  eject- 
ment brought  by  A  against  B,  illustrates  this.  We 
can  only  say  that  these  plans  are  of  infinite  variety, 
and  only  become  familiar  to  the  practitioner  after 
long  experience. 

If  you  will  observe  veteran  lawyers,  you  will  see 
that  generally  their  plans  are  less  complex  than 
those  of  their  younger  brethren.     And   the  simpler 


PLAN    OF    CONDUCT.  163 

the  plan  can  be  made,  the  better,  provided  nothing 
important  be  sacrificed.  The  lawyer  must  weigh 
everything  presented,  and  reject  from  inclusion  in  his 
plan  everything  trivial  and  slight.  Here  is  required 
the  peculiar  judgment  and  acumen  of  the  lawyer. 
His  judgment  must  dictate  to  him  what  to  throw 
away  and  what  to  preserve.  He  should  use  every 
point  which  seems  likely  to  win.  There  cannot  be 
too  many  such  used.  For  instance,  if  defending 
a  surety,  he  could  support  by  evidence  the  illegality 
of  the  consideration  of  the  contract  declared  on  ; 
that  the  debt  had  been  paid  ;  that  the  principal  had 
been  indulged  by  the  plaintiff  to  the  detriment  of 
the  surety  ;  and  that  the  right  of  action  is  barred — 
the  counsel  should  plead  all,  and  prepare  on  all.  He 
is  wrong  to  throw  away  a  single  chance  of  success. 
But  if  he  can  only  support  one  or  two  of  these,  let 
him  stand  upon  them  alone.  The  simplest  plan, 
that  is  exhaustive,  is  the  best.  It  is  easier  under- 
stood and  retained  in  mental  grasp,  and  therefore 
more  easily  executed.  Nothing  so  enfeebles  a  law- 
yer as  to  cultivate  a  tendency  to  make  every  possi- 
ble point.  Practice  and  observation,  together  with 
reflection  and  study,  w^ill  teach  him  the  difference 
between  cardinal  points  and  those  which  are  not. 

But  we   would  not  have   him  hypercritical  and 
over-nice.     While  he  must  reject  everything  from 


i64  CONDUCT    CF    LITIGATION. 

his  plan  of  conduct  which  is  unimportant  and  not 
controlling,  he  must  not  be  too  severe  a  judge 
against  his  client.  He  must  give  him  the  benefit 
of  all  reasonable  doubts,  to  use  the  language  of  the 
law  of  criminal  evidence. 


'  CHAPTER     IX 

FLAN    OF    CONDUCT. 

{Continued^ 

There  are  some  other  matters  which  we  mast 
discuss  before  leaving  the  subject  of  Plan  of  Con- 
duct Though  our  reflections  will  be  somewhat 
desultory,  we  think  that  they  will  be  found  of  use. 

We  have  before  this  hinted  at  the  importance  of 
secrecy.  No  prudent  general  will  disclose  to  the 
enemy,  in  ordinary  circumstances,  by  anj  unguarded 
act,  his  plan  of  operations.  Secrecy  is  not  of  ne?ir 
so  much  importance  in  the  conduct  of  litigation. 
There  are  many  controversies,  everything  relating 
to  either  side  of  which  a  piactical  lawyer  will  see  at 
the  first  glance.  There  are  many  cases  where  the 
issues  are  so  simple,  that  the  pleadings  can  contain 
no  secrets.  It  is  idle,  then,  to  talk  of  secrecy  here. 
But  where  there  is  any  intricacy,  where  there  is  un- 
certainty in  the  law,  where  there  evidently  appear 
great  resources  of  evidence  at  the  command  of  the 
adversary,  you  are  blind  and  foolish  to  disclose  your 
plan.  Your  client  is  entitled  to  all  advantage  that 
you  can  lawfully  win  for  him.  You  are  not  to  forge 
precedents  to  dupe  the  judges,  or  suborn  witnesses 


1 66  CONDUCT    OF    LITIGATION. 

to  make  fools  of  the  jury.  But  your  client  having 
entrusted  his  business  to  you,  can  demand  rightfully 
of  you  that  you  procure  for  him  the  most  favorable 
judgment  possible  under  the  law  as  the  judges  hold 
it,  and  the  evidence  as  the  jury  see  it.  You  may 
procure  by  honest  argument  a  decision  from  even  a 
respectable  court  of  errors,  which  another  will  be  in 
haste  with  good  reason  to  reverse.  You  may  get  a 
verdict,  which,  though  sustained  by  the  evidence 
adduced,  is  yet  strongly  and  decidedly  against  the 
weight  of  that  which  could  be  adduced.  You 
should  get  this  decision  and  this  verdict,  provided 
you  do  neither  dishonestly.  If  you  win  by  superior 
skill,  by  superior  vigilance,  you  have  done  right, 
though  the  real  right  of  the  case  be  against  you. 
You  are  not  the  counsel  for  the  other  side.  Now 
these  advantages  you  can  hardly  win  if  you  disclose 
your  plan  beforehand.  You  will  find  in  nine 
times  out  of  ten  that  you  had  better  be  reticent  of 
your  counsels  in  the  extreme. 

But  there  are  some  cases  where  you  had  better 
boldly  disclose  your  plan.  We  have  in  the  last 
chapter  quoted  the  opinion  of  Choate  given  before 
the  trial  of  Frof  Webster,  that  his  counsel  should 
put  forth  some  theory  of  defense  to  allay  the  rising 
popular  excitement.  This  is  an  instance  where 
weakness  and  infirmity   might   possibly   have  been 


PLAN    OF    CONDUCT.  167 

helped  by  the  disclosure  of  the  plan  of  its  defense. 
Sometimes  you  will  find  your  hand  so  strong  that 
it  will  appall  your  adversary  to  show  it  to  him. 
This  is  often  the  case  in  fighting  fraud.  The  judg- 
ment of  the  practitioner  must  tell  him  when  to  dis- 
close his  plan.  But  he  will  generally  find  it  safer  to 
keep  it  to  himself. 

There  is  another  question  which  often  puzzles 
the  lawyer.  He  must  decide  whether  his  attack  or 
defense  shall  be  bold  or  not.  Sometimes  he  is  on 
the  unpopular  side,  and  too  much  violence  will  repel 
instead  of  attracting  sympathy.  Again  he  will  be 
often  conducting  cases  where  timidity  will  ruin  him. 
Here  all  the  counsel  that  I  can  give  him,  is,  that  he 
must  be  guided  by  the  circumstances,  and  his  own 
knowledge  of  human  nature.  But  generally  an 
attack  or  defense  made  fortiter  in  re,  siiaviter  in 
tnodo  is  the  best.  Stand  up  to  your  adversary 
firmly,  but  with  no  boasting,  or  show  of  violence  or 
over-confidence.  This  is  the  best  demeanor  ijen- 
erally. 

The  prudent  general  provides  beforehand  his 
way  of  retreat  to  be  used  in  case  of  disaster.  Every 
contrivance  possible  to  diminish  risk  and  uncer- 
tainty must  be  resorted  to  in  the  conduct  of  litiga- 
tion, and  the  preparation  should  look  beyond  the 
trial,  and  provide,  if  it  can  be  done,  the  means  of 


i68  CONDUCT     OF    LITIGATION. 

obtaining  a  new  trial  in  case  of  defeat.  As  the 
lawyer  becomes  more  and  more  familiar  with  the 
case,  he  will  find  suggested  to  him  along  its  whole 
track,  how  his  adversary,  or  even  the  judge,  may  be 
surprised  into  some  action  which  will  render  a  new 
trial  probable,  if  the  verdict  should  result  against 
him  Perhaps  he  is  aware  of  certain  peculiar  views 
entertained  by  the  judge,  of  law,  which  he  is  confi- 
dent the  court  of  errors  will  not  sustain,  which  he 
may  turn  to  account ;  and  he  may  often  use  what  he 
believes  to  be  the  mistaken  views  of  his  adversary 
to  advantage.  The  author  thinks  from  his  own  ob- 
servation, that  the  most  of  his  brethren,  even  when 
conducting  important  cases,  trust  rather  to  their  own 
ingenuity  during  the  trial  to  provide  for  another 
trial,  than  to  any  premeditation  and  plan  made  be- 
fore. But  surely  it  will  be  better  by  far  to  piece  out 
the  ingenuity,  however  great,  exercised  during  the 
short  time  that  the  court  is  engaged  with  the  case, 
with  the  usually  greater  results  of  deliberation  made 
quietly  beforehand,  for  a  much  longer  time.  Besides, 
during  the  trial  the  mind  is  too  intensely  occupied 
with  the  principal  issue  then  before  the  court,  to  well 
attend  to  anything  else.  We  will  give  two  in- 
stances of  preparation  beforehand  of  grounds  for  a 
new  trial : 

While  A  was    preparing   an    ejectment   for  the 


PLAN    OF    CONDUCT.  169 

plaintiff,  he  apprehended  that  it  would  be  attempted 
to  examine  himself  as  a  witness  against  his  client. 
He  anticipated  this  because  of  the  defendant's 
counsel's  connection  with  a  case  not  long  before 
tried,  and  reported,  in  which  this  counsel  had  won  a 
great  triumph  by  examining  the  plaintiff's  lawyer, 
who  without  objection  had  testified  that  he  had  no 
authority,  nor  had  his  client,  to  use  the  lessor's  name 
in  that  suit.  A  had  two  demises  in  his  declaration, 
and  it  is  unnecessary  to  narrate  the  facts  which 
made  it  appear  desirable  to  him  that  the  defendant 
should  offer  to  make  a  witness  of  him  as  already 
stated.  Suffice  it  now  to  say,  that  A  felt  sure  that 
such  testimony  could  not  put  him  in  worse  plight, 
and  that  he  could  provide  no  better  ground  for  a 
new  trial  in  the  event  he  lost  the  verdict  on  the 
merits  of  the  case,  than  by  using  this  opportunity, 
and  he  carefully  premeditated  his  action.  He  re- 
solved to  make  a  frivolous  objection  to  his  own 
competency,  Vvdiich  he  believed  the  judge  would 
overrule.  On  the  trial,  after  the  plaintiff  made  cut 
his  prima  facie  case  by  evidence,  supporting  only 
one  of  the  demises  made,  and  had  closed,  the  dt 
fendant's  counsel  offered  to  examine  A  as  a  witness 
to  prove  that  the  suit  was  brought  for  the  exclusive 
benefit  of  the  other  particular  lessor,  whom  he  knew 
to  be  the  reai   plaintiff,   although  the    demise    laid 


I/O  CONDUCT    OF    LITIGATION. 

from  him  had  not  been  supported  by  proof,  and 
against  whom  he  conceived  that  he  had  a  good  de- 
fense, and  the  offered  witness  objected,  urging 
"  that  as  title  had  been  shown  in  the  other  lessor, 
this  was  an  attempt  to  prove  it  out  by  the  mere 
opinion  of  a  lawyer."  The  objection  being  un- 
meaning, was  overruled  with  some  warmth,  and  A 
was  forced  to  tell  who  was  his  real  client. 

There  was  a  hard  fight  on  the  evidence.  The 
defendant  did  not  connect  the  lessor  for  whose  sole 
benefit  he  had  proved  by  the  lawyer,  as  recited,  that 
the  suit  was  proceeding,  with  his  defense  by  any 
other  evidence,  and  he  got  a  verdict.  But  the  court 
did  not  hesitate  to  grant  the  plaintiff  a  new  trial, 
when  it  was  urged  that  this  action  of  the  judge 
violated  the  rule  of  law  protecting  the  confidential 
communications  between  client  and  attorney. 
Had  A  objected  on  the  true  ground,  the  excellent 
judge  would  have  at  once  sustained  the  objection, 
and  another  person  present  at  the  trial  who  would 
have  been  a  competent  witness,  would  certainly 
have  been  thought  of  by  the  defendant,  had  matters 
come  to  extremity.  This  witness  at  the  next  trial 
was  in  a  distant  state.  The  judge  was  led  into  this 
error,  by  unconsciously  supposing  that  the  court  of 
errors  had  also  decided  in  the  case  mentioned  on 
which   the   defendant   relied,  that    the    counsel  wiio 


PLAN    OF    CONDUCT.  171 

testified  below  was  compellable  to  testify.  Had  the 
true  objection  been  stated,  this  delusion  would  at 
once  have  been  broken  up.  A,  when  he  drew  his 
motion  for  a  new  trial,  only  complained  generally 
that  the  judge  had  overruled  his  objection.  The 
court,  fmding  no  valid  reason  to  support  the  judg- 
ment forcing  the  counsel  to  testify,  as  the  error  was 
material,  and, had  it  not  been  committed,  the  verdict 
under  the  remaining  evidence  ought  to  have  been 
for  A,  as  the  other  demise  had  been  supported,  could 
do  nothing  else  than  grant  a  new  trial. 

The  next  instance  that  I  will  give  is  more 
mgenious  still,  and  must  have  been  premeditated 
with  great  care.  I  gathered  it  from  an  argument 
which  I  once  heard  in  a  court  of  errors  between  two 
of  the  ablest  and  cunningest  lawyers  I  ever  knew. 

The  local  statute  permitted  a  complainant  in  a  bill 
in  equity  to  waive  discovery,  and  after  such  waiver 
the  defendant's  answer  v/as  not  evidence.  The  com- 
plainant in  the  case  which  I  heard  argued,  who  was 
a  remainder-man,  had  exhibited  his  bill  in  equity 
against  the  tenant-for-life,  alleging  a  forfeiture  of  the 
life  estate  by  reason  of  the  waste  of  the  tenant. 
The  bill  stated  that  the  complainant  could  prove 
particular  allegations  without  the  oath  of  the  defen- 
dant. The  case  had  boen  tried  by  a  jury,  as  is  the 
custom  in  that  state,  and  the  counsel  for  the  tenant- 


172  CONDUCT    OF    LITIGATION. 

for-life  had  contended  below,  as  his  adveisary  stitcd 
above,  that  discovery  being  waived  as  to  the  particu- 
lar allegations  that  could  be  proved  without  it,  and 
some  of  these  allegations  being  material,  and  not 
having  been  proven,  the  complainant  had  not  made 
out  his  case.  But  the  jury,  under  the  inslractions 
of  the  court,  found  for  the  complainant.  The  defen- 
dant moved  for  a  new  trial ;  and  it  was  the  judg- 
ment refusing  this  motion,  assigned  as  error,  which 
I  heard  argued.  There  were  several  points  made 
and  discussed  with  zeal  and  ability ;  but  a  new  trial 
was  granted  the  tenant-for-life,  on  the  ground  urged 
more  strongly  than  any  other,  that  his  discovery  had 
not  been  w^aived  expressly,  as  the  judges  held  such 
waiver  must  under  the  statute  be  made,  and  that 
therefore  his  answer  was  evidence,  and  had  not  been 
overcome  by  two  witnesses.  There  was  an  apparent 
but  not  a  real  waiver  of  discovery  in  the  complain- 
ant's bill.  This  formidable  attack  on  the  defen- 
dant-in-error  was  masked  under  the  ground  in  the 
motion,  that  the  verdict  was  against  the  evidence. 
The  counsel  for  the  life-tenant,  though  wonderfully 
quick-sighted,  had  never  anticipated  the  real  design 
of  his  adversary,  who  had  the  ingenuity  to  exactly 
reverse  his  position  and  still  hold  on  triumphantly 
to  his  case. 

Another   point    which  we   must  discuss,    is   the 


PLAN    OF    CONDUCT.  173 

difference  between  aggression  and  defense.  Acci- 
dent sends  his  retainer  to  the  lawyer.  He  must 
attack  to-day  and  defend  to-morrow.  In  the*  main, 
though  there  is  some  difference,  the  principles  of  a 
good  conduct  of  either  are  the  same.  If  you  will 
observe  a  large  number  of  the  profession,  you  will 
find  that  you  may  divide  them  into  two  classes,  and 
in  one  of  them  you  place  lawyers  who  attack  better 
than  they  defend,  and  in  the  other  you  will  place 
those  who  defend  better  than  they  attack.  Occa- 
sionally you  will  see  a  member  of  the  profession  who 
will  nearly  always  be  found  of  counsel  for  the  defen- 
dant, and  you  will  also  see  another  who  is  so  prone 
to  action  that  he  seems  to  get  all  of  the  sides  which 
demand  taking  the  initiative.  Mr.  Parker  tells  us  : 
*'  Not  a  great  many  years  ago,  a  leading  lawyer  at 
the  Suffolk  bar  retired  from  the  active  practice  of 
the-  court-room,  and  among  other  reasons  for  that 
retirement  he  gave  this :  '  What's  the  use  going  on 
term  after  term  fighting  cases  for  corporations  with 
Choate  to  close  on  me  for  the  plaintiff.  If  I  have 
fifty  cases,  I  shan't  gain  one  of  them." 

1  often  wonder  that  if  the  process  of  differentia- 
tion for  which  so  much  is  claimed  will  not  in  time 
assign  some  of  the  bar  to  plaintiffs,  and  the  rest  to 
defendants.     There  are  many  cases  where  the  ques- 
>  Reminiscences,  53. 


174  CONDUCT    OF    LITIGATION. 

tion  of  taking  the  initiative  or  replying  to  it  depends 
entirely  upon  what  side  you  have.  You  are 
restricted  and  must  play  the  part  given  you  and  do 
nothing  else. 

But  in  those  cases  where  there  is  variety  and 
possibility  of  many  combinations,  you  will  observe 
in  those  who  manage  them,  a  difference  in  the  de- 
fensiv^e  character.  There  is  a  defense  which  in  its 
nature  is  really  aggressive.  The  initiative  is  as- 
sumed at  a  certain  point,  often  realizing  the  saying 
of  Napoleon,  that  "  a  strong  attack  is  the  best  de- 
fense." When  you  marshal  the  proofs  to  overwhelm 
the  main  witness  of  the  plaintiff,  you  are  acting  on 
the  offensive  just  as  much  as  was  the  plaintiff  when 
he  opened. 

Then  there  is  a  more  cautious  defense.  As  you 
observe  it,  you  seem  to  satisfy  yourself  that  its  pur- 
pose is  merely  to  draw  the  game.  He  who  con- 
ducts it  never  drops  the  defensive.  He  only  meets 
and  tries  to  hold  his  own  on  the  cardinal  points. 

Now,  as  you  should  do  nothing  without  a 
purpose,  and  as  you  should  add  to  whatever  can  be 
vv^on  in  the  heat  of  conflict  all  the  advantages  of 
premeditation,  a  plan  is  better  than  no  plan.  And 
this  is  why  generally  the  advantage  is  with  the 
attacking  column  in  warfare.  That  has  something 
definite  and  premeditated    to    do.     The    other  side 


PLAN     OF    CONDUCT.  175 

only  seconds  the  initiative  of  the  attack,  and  will 
scarcely  ever  anticipate  it  exactly  and  precisely.  In 
games,  in  campaigns,  and  in  litigation,  to  have  the 
move  is  worth  something.  And,  therefore,  when  a 
defense  can  be  made  aggressive,  other  things  being 
equal,  it  is  preferable  to  the  unaggressive.  If 
chances  are  equal,  and  we  give  the  adversary  the 
move,  if  he  makes  no  misplay  he  will  beat.  But  if 
the  defense  can  be  turned  into  a  real  attack,  as 
where  the  defendant  has  good  cause  of  a  cross- 
action,  the  opportunity  should  never  be  lost,  even  if 
the  action  be  nothing  more  than  slightly  ancillary 
to  the  defense.  The  plaintiff  controls  his  action. 
He  can  dismiss  and  renew,  or  shift  to  some  other 
remedy  or  forum,  and  avoid  trials ;  but  the  defend- 
ant who  is  nothing  but  a  defendant,  only  avoids  his 
adversary  pushmg  for  trial  by  showing  some  provi- 
dential cause. 

So,  then,  we  advise  that,  other  things  being 
equal,  an  adversary  should  get  the  initiative  if  he 
can.  If  he  is  plaintiff,  let  him  hold  to  the  initiative 
if  possible,  and  keep  the  move  through  the  whole 
conduct.  The  defendant,  other  things  being  equal, 
should  make  an  aggressive  defense  if  he  can.  The 
minute  his  aggression  begins  he  has  the  move,  and 
if  planned  judiciously  and  executed  skillfully,  his 
offensive    may    lead   to    victory.     An    unaggressive 


176  CONDUCT    OF    LITIGATION. 

defense  requires  more  vigilance,  and  far  more  sudden 
promptness  of  decision  and  action,  than  an  attack. 
It  is  only  to  be  adopted  when  there  is  no  chance  of 
avoiding  it.  Still  as  it  must  be  made  now  and  then, 
it  should  be  carefully  meditated  by  the  lawyer. 
Fancy  yourself  assailed  by  a  boxer,  and  you  merely 
parry  his  blows.  This  is  the  unaggressive  defense. 
Let  him,  however,  attack  you,  and  if  you  defend 
until  you  catch  him  off  his  guard  and  knock  him 
down,  this  is  aggressive  defense,  and  much  safer  for 
you  than  the  other. 

Before  we  close,  we  must  insist  that  the  plan 
should  be  most  clearly  understood.  Nothing  con- 
duces so  much  to  the  clear  understanding  as 
that  it  be  neatly  drafted.  We  have  heard  ov'^er  and 
over  Bacon's  saying  that  "  writing  makes  an  exact 
man."  The  careful  and  painstaking  lawyer  will 
often  before  a  trial  have  drafted  his  plan  again  and 
again.  But  we  will  return  to  this  subject  when  we 
treat  of  briefs. 

We  will  now  treat  somewhat  at  random  of  some 
other  topics  which  we  are  in  doubt  whether  to  place 
under  the  head  of  this  and  the  last  chapter,  or  under 
those  preceding,  more  especially  belonging  to  prep- 
aration of  the  case. 

Sometimes  you  can  help  your  case  by  procuring 
special  legislation  for  it  in  matters  not  hampered  by 


PLAN    OF  CONDUCT.  177 

the  Federal  or  the  State  constitution.  Thus  the 
Legislature  may  remit  a  forfeiture  to  the  State,  or  a 
fine. 

There  are  many  controversies  which  you  had 
better  dispose  of,  if  you  can,  by  an  arbitration  or 
reference.  It  is  generally  a  prudent  rule  to  arbitrate 
bad  cases  if  possible,  and  decline  to  arbitrate  good 
ones.  Arbitrators,  both  professional  and  lay,  are 
ever  disposed  to  compromise  ;  and  if  all  of  the  right 
of  the  case  is  manifestly  against  you,  still  you  will 
nearly  always  be  awarded  something  in  an  arbitra- 
tion. You  should  by  all  means  encourage  amicable 
settlements  between  litigants,  provided  they  can  be 
made  without  too  much  sacrifice.  But  it  has  been 
my  experience  that  the  weak,  the  infirm,  the  poor, 
the  widow,  and  the  orphan,  succeed  better  in  their 
cases  when  the  whole  country  can  note  the  trial 
from  beginning  to  end.  To  refer  the  case  of  an  in- 
experienced man  of  submissive  disposition,  who  is 
matched  wnth  a  shrewd  adversary,  to  the  arbitration 
of  laymen,  is  generally  to  make  the  strong  man 
stronger,  and  the  weak  man  weaker.  But  there  are 
some  cases,  involving  the  most  delicate  matters, 
which  should  never  be  brought  to  a  public  trial  if  it 
can  be  avoided.  The  whole  community  would  be 
scandalized  at  the  exposures.  When  the  honor,  the 
reputation,  the  happiness,  or  domestic  peace  of  your 


178  CONDUCT    OF    LITIGATION. 

client  is  at  stake,  you  must  govern  him  with  a  high 
hand.  His  property  or  the  amount  of  your  fee 
should  be  postponed  to  the  interests  which  are  so 
much  more  important. 

Here  is  possibly  the  best  place  for  recommend- 
ing amicable  settlement  between  parties.  Let  it  be 
your  always-kept  rule  never  to  bring  an  action  or 
file  a  defense  until  you  have  been  refused  a  settle- 
ment that  you  regard  reasonable  and  right.  Ask  the 
other  side  to  confer  with  you,  solicit  an  offer  of  set- 
tlement, be  ready  to  offer  terms  yourself  Always 
get  from  your  client  as  large  discretion  as  possible. 
The  disease  of  the  judiciary  in  England  and  America 
is  slowness.  The  parties  grow  old  before  obtaining 
their  rights.  Witnesses  die,  and  the  death  of  parties 
often  throws  everything  into  inextricable  confusion, 
and  there  is  still  more  confusion  when  a  counsel 
who  is  the  sole  repositary  of  the  secrets  of  a  long 
preparation  falls  in  the  harness.  It  is  better  for 
the  court  always  crowded  with  business,  it  is  better 
for  the  parties,  better  for  the  lawyers,  better  for 
society  that  there  be  as  speedy  settlement  as 
possible  of  all  cases  that  can  be  settled.  Note 
often,  the  almost  unconscionable  sacrifices  that  a 
shrewd  business  man  will  make  to  avoid  litigation. 
I  feel  strongly  inclined  to  discourage  arbitration. 
References   to    the  lawyers    of    the    parties    I  like 


PLAN     OF    CONDUCT.  179 

better,  but  there  is  even  in  them  too  much  com- 
promise of  certain  rights.  A  settlement  with  your 
adversary's  lawyer,  when  it  can  be  obtained,  is  better. 
If  you  can  meet  each  other  as  gentlemen,  and  not 
as  sharpers,  intending  to  effect  a  settlement  which 
shall  be  on  the  whole  just  and  fair,  you  will 
often  be  astonished  to  find  how  you  can  satisfy 
yourselves  and  rejoice  your  clients.  The  celebrated 
lawyer  whom  I  have  so  commended  at  the  conclu- 
sion of  Chapter  II.  of  this  Book,  made  more  effort 
habitually  to  settle  cases  than  any  other  lawyer  whom 
I  ever  knew.  If  you  were  on  the  other  side,  and 
known  to  be  favorably  inclined  to  such  adjust- 
ment, he  would  sound  you  as  soon  as  he  fell  in  with 
you,  and  if  he  found  the  way  clear  he  would  with 
great  frankness  disclose  his  hand.  Then  he  v/ould 
consider  what  you  had  to  say.  After  brief  reflection 
he  would  always  begin  :  "  Well,  this  is  the  right  of 
the  case,"  and  he  would  go  on  to  state  what  he 
thought  the  law  demanded.  He  would  always  con- 
cede you  something  "  for  peace  sake,"  as  he  would 
say.  With  this  frankness  and  earnest  desire  to  end 
at  once  all  strife  that  he  could,  he  amicably  disposed 
of  an  amazing  amount  of  litigation.  He  made  a 
large  fortune  at  the  practice,  and  I  have  often 
thought  that  most  of  it  was  the  accumulation  of  fees 
that  he  had  received  in  such  cases.     Nothing  could 


I  So  CONDUCT    OF    LITIGATION. 

exceed  his  candor  both  to  his  adversary  and  to  his 
own  client.  To  the  latter,  he  would  say  when  can- 
vassing a  proposed  settlement,  "  Possibly  I  might  be 
able  to  recover  a  better  verdict  for  you — but  then 
there  are  the  chances  of  a  verdict  worse  than  this. 
Your  time  and  your  peace  are  worth  more  than  this 
probable  concession.  I  advise  you  to  settle  as 
proposed,  but  I  tell  you  that  you  command  me, 
while  I  can  only  advise  you."  The  client  generally 
heard  this  little  harangue  with  weariness,  and  before 
he  was  half  done  had  given  him  full  powers.  The 
lawyer  who  rejected  his  advances,  had  nearly 
always  reason  afterwards  to  repent.  It  w^as  but 
seldom  that  he  ever  after  one  of  his  proposed 
settlements  was  refused,  failed  to  recover  more  than 
he  had  offered  to  be  content  with. 

The  lawyer  should  always  be  vigilant  to  discover 
chances  of  compromising  controversies.  Let  him 
guard  himself  against  a  disposition  to  concede  too 
much,  nor  should  he  make  of  himself  a  stickler  for 
small  things.  And  confer  only  with  the  lawyer  of 
the  other  side.  Never  take  any  advantage  of  a 
layman.  Seek  foeman  worthy  of  your  steel  in  his 
lawyer.  It  ought  to  be  made  a  penal  offense  to 
procure  an  inadequate  settlement  of  a  matter  litiga- 
ted from  a  party,  without  the  knowledge  of  his 
lawyer.     When  seeking  to  effect  a   settlement,  you 


PLAN    OF    CONDUCT.  iSi 

must  be  prudent  and  watehful.  You  are  to  disclose 
no  secrets  which  may  hurt  you.  And  that  which  is 
of  the  greatest  importance  to  you,  is  that  you  well 
understand  the  character  of  your  adversary.  If  he 
is  tricky,  or  unreasonably  contentious,  you  had 
better  do  nothing  more  than  to  make  him  an  offer 
But  if  he  is  one  of  those  gentlemen  who  fill  the  bar 
of  America  everywhere,  you  can  often,  when  you 
see  that  he  can  not  meet  it,  tell  him  the  strength  of 
your  case,  and  thus  more  speedily  effect  your  end. 

I  do  not  know  what  has  been  the  experience  of 
my  other  brethren  of  this  great  republic,  but  it  has 
been  mine  to  find  in  the  amicable  settlements  (not 
references)  of  lawyers,  less  diplomacy  and  less  strife 
to  outwit,  than  in  any  other  attempted  adjustments. 

So  much  on  the  subject  of  Plan  of  Conduct 


CHAPTER   X. 


BRIEFS. 


After  some  hesitation,  I  have  decided  to  de- 
vote a  chapter  to  the  subject  of  Briefs.  Were  I 
writing  for  an  English  public,  I  would  have  given 
only  a  paragraph  to  the  matter,  inserting  it  in  some 
fit  digression  somewhere  in  the  chapters  on  Prepara- 
tion. The  passage  from  Sellon  which  will  be  cited 
hereafter,  would  have  been  the  bulk  of  what  I  felt 
it  necessary  to  say.  But  the  importance  of  a  brief 
for  the  trial  of  cases  at  nisi  prius  is  so  little  under- 
stood in  this  country,  that  I  feel  justified  in  treating 
the  subject  at  length. 

The  word  brief,  in  America,  is  hardly  ever  used 
in  the  comprehensive  sense  that  prevails  in  Eng- 
land. Here  a  lawyer  generally  calls  the  skeleton  of 
his  law  argument  his  brief.  The  different  proposi- 
tions and  arguments  therein  contained  are  accom- 
panied with  citations  of  pertinent  authorities.  In 
many  parts  of  our  country  you  will  never  see  a 
lawyer  provided  with  any  written  preparation,  ex- 
cept when  he  argues  a  purely  legal  question,  and 
you  will  seldom  see  him   then  furnished  with  what 


BRIEFS.  183 

he  calls  a  brief,  unless  he  is  before  the  court  of  last 
resort.  You  are  led  Lo  believe  that  did  not  the 
rules  require  him  to  furnish  the  court  with  his  points 
and  authorities,  that  he  would  there  trust  entirely 
to  his  unaided  memory  in  making  his  argument. 

But  in  England  the  brief  is  prepared  by  the 
attorney  for  the  use  of  the  counsel  who  conduct  the 
trial.  Sellon  gives  the  following  advice  to  attor- 
neys as  to  their  briefs  :  "  The  briefs  should  contain 
an  abstract  of  the  pleadings,  a  clear  statement  of 
the  client's  case,  and  a  proper  arrangement  of  the 
proofs,  with  the  names  of  the  witnesses.  The  grand 
rule  to  be  observed  in  the  drawing  of  briefs,  is  con- 
ciseness with  perspicuity." '  Another  author  of  high 
authority,  citing  and  approving  the  passage  we  have 
given,  says  :  "  Previously  to  the  trial,  a  brief  should 
be  prepared  by  the  attorney  for  each  party,  and  de- 
livered to  counsel,  containing  a  copy  or  full  abstract 
of  the  pleadings,  a  clear  statement  of  the  facts  of 
the  case,  with  such  observations  as  occur  thereoni 
and  a  proper  arrangement  of  the  proofs,  with  the 
names  of  the  witnesses.  The  great  rule  to  be  ob- 
served in  drawing  briefs,  as  it  is  well  expressed  in  a 
late  useful  publication,  consists  in  concisencis  with 
perspicuity.'"" 

The  reader  will  see  that  a  brief  prepared  by  an 
'2  Sel.  Pr.  459.  ''Tidd   Pr.  799. 


t84  conduct    of    LITIGATION. 

English  attorney  for  the  counsel,  is  much  more 
than  a  mere  list  of  law-points  supported  by  authori- 
ties cited.  It  may  not  contain  a  single  authority, 
and  still  be  voluminous.  It  is  such  a  statement  of 
the  case,  as  that  the  case  may  be  understood  there- 
from and  conducted.  It  resembles  more  the  state- 
ments of  facts  made  out  by  a  reporter  of  a  decision 
for  publication  with  the  opinion,  than  anything  else 
that  I  can  think  of  now.  But  the  reporter's  state- 
ment contains  the  case  of  each  side.  To  define 
shortly,  the  brief  should  set  forth  in  an  orderly  ar- 
rangement the  whole  results  of  the  preparation  of 
the  case. 

Surely  we  should  not  be  made  to  pause  here, 
and  demonstrate  the  good  policy  of  making  a  brief. 
The  merchant  enters  all  his  transactions  as  they 
occur  in  his  day-book,  and  at  last  these  transactions 
appear  digested,  and  accessibly  arranged  in  the 
ledger.  The  lawyer  himself  keeps  his  books  from 
which  he  can,  whenever  necessary,  make  out  a  lucid 
statement  of  any  matter  between  himself  and  his 
client  or  a  partner.  The  wisest,  and  even  the  most 
ready  advocates,  always  premeditate  their  speeches, 
and  if  they  do  not  speak  holding  their  notes  before 
them,  they  have  the  plan  of  their  speech  well 
conned,  and  by  heart.  Shall  the  lawyer  who  is  a 
licensed  irregular,  who  has  no  appointed  times  of  his 


BRIEFS.  185 

own,  who  is  in  his  office  at  his  hasty  preparation 
to-day,  and  a  hundred  miles  away  attending  a  dis- 
tant court  to-morrow  ;  shall  he,  who  as  fast  as  he 
loads  his  memory  afresh,  has  the  burden  at  once 
thrust  out  by  another,  trust  to  that  battered  and 
ill-treated  memory,  to  carry  the  pleadings,  the  evi- 
dence, the  anticipations  of  the  adversary's  case,  and 
the  plan  of  conduct  ?  Had  he  the  marvellous 
memory  of  Niebuhr,  he  might  dispense  with  a 
brief.  Lieber,  in  his  reminiscences  of  the  historian, 
who,  be  it  understood,  had  never  visited  Greece, 
says : 

"When  I  had  just  returned  from  Greece,  and 
described  certain  spots  to  him,  he  would  ask  for  by- 
ways, remains  of  wells,  paths  over  high  ridges  or 
other  minute  details,  as  if  he  had  been  there.  As 
many  of  the  objects  for  which  he  asked  exist  still, 
and  I  had  seen  them,  I  was  amazed  at  his  accurate 
knowledge.  '  Oh,'  said  he,  *  I  never  forget  anything 
I  have  once  seen,  read,  or  heard.' " 

Is  there  to-day  an  American  lawyer  accred- 
ited with  such  a  memory  }  If  he  has  such,  he 
can  manage  his  cases  as  well  without  as  with  a 
brief. 

The  lawyer,  if  he  has  done  as  we  wish  him  to  do 
in  his  preparation,  has  kept  memoranda,  lucid  and 
containing   everything,  however   concise.      Fie    has 


1 86  CONDUCT    OF    LITIGATION. 

noted  down  pertinent  authorities,  and  the  legal  posi- 
tions which  seem  to  him  controlling.  He  has  kept 
notes  of  the  evidence  both  of  his  own  and  what  he 
anticipates  will  be  that  of  the  adversary.  As  he 
sees  that  he  approaches  the  close  of  his  preparations, 
he  should  make  up  his  brief  We  have  already- 
illustrated  the  making  of  a  brief  from  the  posting  of 
the  ledger.  The  brief  contains  the  labors  of  the 
lawyer  in  his  case  digested.  After  being  made  up, 
another,  if  of  equal  ability,  could  take  it  and  try  the 
case  almost  as  well  as  himself 

To  do  this  work  well,  requires  much  mental 
ability.  Mr.  Warren,  in  a  late  work,  addressing 
attorneys  and  solicitors,  expresses  himself  thus  : 

"  I  can  not  quit  this  part  of  the  subject,  without 
suggesting  the  propriety  of  making  logic  one  of  the 
early  studies  of  those  preparing  for  your  branch  of 
the  profession.  Only  consider  how  necessary  it  is 
to  have  some  acquaintance  with  it  in  order  to  be 
able  to  deal  successfully  with  such  cases  as  I  have 
iust  been  speaking  of  ^[Patent  and  Copy-right 
cases], — nay,  to  deal  with  any^ — with  all — cases 
requiring  clear  and  methodical  treatment  by  you  in 
order  to  set  them  in  proper  order,  and  in  a  right 
direction  for  legal  adjudication.  How  charming  is  it 
to  the  finest  intellect  to  have  to  deal  with  a  brief, 
however   ponderous   and    dishearting   in    bulk    and 


BRIEFS.  187 

appearance,  which  on  being  opened  displays  the 
possession  on  the  part  of  the  attorney  or  solicitor 
who  drew  it  up,  of  those  qualifications  which  I  am 
now  urging  on  you  :  the  language  elegant,  simple, 
and  nervous ;  disfigured  by  no  senseless  repetitions, 
no  vulgar  colloquialisms,  by  nothing  impertinent  or 
intemperate  :  and  lucidus  ordo  shining  in  every 
page.  How  much  of  the  triumph  achieved  by  the 
most  eminent  counsel,  is  not  really  shared  by  the 
the  framer  of  such  a  brief  as  I  am  speaking  of  ?  and 
who  could  not  have  been  surpassed  even  if  that  very 
counsel  had  sat  down  himself  to  draw  up  the  brief 
from  which  he  was  to  speak."  ' 

A  brief  is  to  be  made  up  gradually.  The  mate- 
rials may  be  long  collecting  and  arranging.  It  is 
best  to  keep  all  these  memoranda  on  loose  sheets 
of  paper.  Never  write  on  but  one  side  of  the 
paper.  Your  paper-knife  and  paste-bottle  will  save 
you  a  world  of  tiresome  transcription,  if  only  your 
notes  are  on  one  side  of  the  paper.  Your  can  tear 
out  and  insert  to  your  heart's  content  in  any  partic- 
ular page  without  destroying  anything  on  another, 
if  only  one  side  of  the  paper  is  written  on. 

We  will  copy  two  pertinent  passages  from  Mr. 
Bishop  : 

"  But,  as  just  suggested,  there  are  things  wdiich 
*  Warren's  Duties  of  Attorneys  and  Solicitors,  66, 


i88  CONDUCT    OF    LITIGATION. 

must   be  taken  down  for  future  use.     They  do  not 
so  much  occur  when  one  is  eno;aged  in  the  study  of 
the    law,    as   when    afterwards    he    enters   upon    its 
practice.     If,  for  example,  a  brief  is  to  be  made  out 
in  a  cause  which  is  to  be  argued  on  a  question   of 
law  before  the  court,  the  person  making  the  brief 
needs  to  note  down  the  authorities  as  he  finds  them. 
Then  he  collects  his  points,  and  writes  them  down, 
points   and  authorities,  together.     In    like    manner, 
if  a  lawyer  is  looking  up  a  question  on  which  to 
advise  a  client,  he  should   make  such  references  as 
will  enable  him,  if  litigation  is  afterward  carried  on, 
to  go  on  with   the  case  without   a  fresh   search  into 
the    books   for  what   is   already   found.     This   is   a 
labor-saving  expedient." ' 

The  next  passage  is  a  vigorous  objection  to  com- 
monplacing in  a  bound  book  : 

"  But  if  one  is  taking  notes  which  he  intends 
afterwards  to  use  about  any  literary  performance,  or 
a  law  argument,  it  is  certainly  worse  than  a  waste 
of  time  to  transfer  them  into  any  form  of  bound 
book.  Let  him  take  them  on  slips :  the  matter  on 
no  one  slip  extending  beyond  some  minute  division 
of  the  larger  general  subject.  Let  him  put  in  the 
left-hand  margin  of  each  slip,  a  word  indicating  the 
particular  topic  to  which  the  slip  relates.  Then 
'  Bishop's  First  Book,  §  423. 


BRIEFS.  189 

when  he  comes  to  use  his  slips,  he  can  distribute 
them  according  to  these  topics,  as  a  printer  distrib- 
utes his  type  according  to  the  letters.  He  can  next 
re-distribute  the  matter  of  the  several  topics,  and 
arrange  and  re-arrange  it,  and  work  as  much  order 
out  of  what  was  chaos  as  he  chooses." ' 

It  is  worthy  of  note  that  the  distinguished 
author  falls  in  both  of  these  passages  into  the  Amer- 
ican habit  of  restricting  a  brief  in  meaning  to  the 
skeleton  of  a  law  argument. 

But  now  let  us  go  somewhat  into  detail.  All 
the  English  authorities  wiiich  we  cite  in  this  chap- 
ter agree  that,  first,  the  brief  should  contain  a  copy 
of  the  pleadings,  or  to  use  the  words  of  Tidd,  "  a 
full  abstract."  Some  contend  that  the  brief  should 
contain  merely  copies.  This  will  undoubtedly  be 
the  rule  preferred  in  England,  where  the  briefs  arc 
not  prepared  by  counsel.  The  attorneys  are  of  in- 
ferior grade,  and,  of  course,  their  superiors  would  be 
jealous  of  any  exercise  by  the  inferiors  of  the  power 
of  selecting  for  them  in  matters  so  important  as  the 
pleadings.  Thus  Choate  is  represented  as  insisting 
that  a  person  who  was  to  report  the  testimony 
taken  in  a  certain  case,  should  set  down  every- 
thing just  as  it  fell  from  the  lips  of  the  witness. 
Of  course  Choate  would  put  his  own  meaning  on 
'Bishop's  First  Book,  §  426 


190  CONDUCT    OF    LITIGATION. 

the  evidence,  and  that  meaning,  when  educed,  may 
have  been  very  small  as  compared  with  the  volume 
of  the  report.  An  English  counsel  would  likewise 
prefer  to  abridge  the  pleadings  for  himself.  But  I 
am  talkinof  to  Americans,  to  counsel  who  make  their 
own  briefs.  What  is  best  for  them  ?  I  insist  that 
as  the  form  of  pleading  becomes  year  by  year  here 
of  less  importance,  and  the  privilege  of  amendment 
is  almost  unlimited,  that  it  is,  in  the  first  place,  a 
useless  waste  of  time  to  give  more  than  enough 
of  the  substance  of  the  pleadings  to  understand  the 
issue.  Suppose  that  there  is  an  action  to  recover  a 
pro.Tiissory  note,  and  the  defendant  pleads  iion  est 
factum.  A  brief  abstract  of  the  note  as  the  cause 
of  a:tion,  followed  by  the  statement  that  there  is  a 
plea  of  710/1  est  factuvi,  is  the  substance  of  the  v/hole 
pi  adings,  and  states  the  issue  with  precision.  It  is 
neater  and  more  saving  of  time  to  yourself,  or  your 
associate  who  may  consult  your  brief,  to  state  the 
pleadin  .s  as  briefly  as  I  have  done.  But  there  are 
other  cases  where  the  issue  made  by  the  pleadings 
can  not  be  stated  so  briefly.  Of  course  the  counsel 
making  up  his  brief  must  have  it  lucid  and  intelli- 
gible. Let  him  read  the  pleadings  carefully,  medi- 
tating them  for  himsilf,  and  then  let  him  abridge 
ihem  as  much  as  he  can,  so  that  he  still  present 
their  substance  fully.     This   neat   abridgment  of  the 


BKlEfS.  ^g\ 

pleadings  he  should  not  regret,  when  afterwards  it 
has  made  him  able  to  assist  the  court  to  a  more 
speedy  understanding  of  the  case.  But  of  course 
we  must  insist  that  this  work  of  abridging  be 
done  accurately.  The  lawyer  can  never  dispense 
with  accuracy.  All  of  his  success,  his  most  wonder- 
ful feats  of  eloquence,  his  brilliant  achievements  of 
professional  skill,  are  founded  upon  the  utmost 
accuracy  of  knowledge  of  details.  These  particu- 
lars of  a  case  must  all  be  thoroughly  known  before 
there  can  be  any  sound  generalization.  And  the 
pleadings  are  as  important  as  everything  else,  and 
must  be  mastered  with  the  same  application  and 
correctness  as  the  evidence.  So  let  the  lawyer  re- 
view his  abridgment  of  the  pleadings,  till  he  can 
answer  with  confidence  to  himself  that  it  presents 
the  whole  issue.  To  give  the  substance  of  volumin- 
ous and  illy-arranged  matter  is  a  great  gift.  How 
often  do  we  find  that  a  head-note  misrepresents  the 
decision.  A  copyist  does  not  much  exercise  his 
brains,  but  one  who  can  accurately  compress  a  dif- 
fused and  disjointed  statement  into  its  smallest 
intelligible  substance,  has  one  of  the  greatest  talents 
of  the  lawyer. 

Next,  the  brief  must  contain  a  statement  of  the 
client's  case.  The  most  ordinary  fault  here  is  that 
the  feelings  of  the  advocate  unconsciously  color  and 


192  CONDUCT    OF    LITIGATION. 

warp  the  statement.  A  real  lawyer  soons  learns  to 
suspect  that  all  narratives  of  clients  are  misrepre- 
sentations. He  will  rarely  accept  any  of  them  as 
wholly  true,  till  he  has  applied  his  infallible  tests. 
Self-interest  excites  the  client  with  desire  to  paint 
his  case  better  than  the  reality.  Many  clients  often 
seem  to  believe  that  by  doing  this  they  improve 
their  cases.  Many  lawyers  are  similarly  affected. 
Even  when  consulting  his  brethren  in  the  freedom 
of  intercourse  which  has  always  characterized  the 
bar,  it  is  only  now  and  then  that  you  will  hear  one 
put  his  case  precisely  right.  Some  detail,  slight  it 
may  be,  or  some  coloring,  is  added  or  omitted.  A 
lawyer  had  better  by  far  learn  to  overstate  the  case 
of  his  adversary,  and  tax  himself  with  the  additional 
inventiveness  necessary  to  meet  the  imaginary  rein- 
forcement, than  cultivate  a  disposition  to  sleep  in  a 
false  security.  So,  then,  the  first  essential  of  a  good 
statement  of  the  ease,  is  that  it  be  fair. 

Of  course  the  statement  must  also  be  full  and 
lucid. 

The  English  authorities  also  insist  that  the  brief 
contain  the  proofs  marshalled,  and  a  list  of  the  wit- 
nesses. The  author  agrees  most  heartily  with  this, 
and  further  insists  that  there  should  be  added  a  list 
of  the  witnesses,  and  a  marshalling  of  the  proofs 
anticipated    by    the    other   side.      We    have    urged 


BRIEFS.  193 

before  that  a  brief  should  contain  the  whole  results 
of  a  good  preparation. 

The  list  of  the  witnesses  is  important.  How 
often  have  all  of  us  been  fatigued  and  wearied  in 
court,  waiting  for  some  counsel  to  find  out  who  are 
his  witnesses,  before  he  can  have  them  called.  But 
besides  this  convenience  and  the  true  economy  of 
preserving  the  names,  there  results  to  the  lawyer  a 
still  greater  advantage  from  keeping  these  lists. 
Whenever  he  opens  his  papers  to  add  somewhat,  be 
it  ever  so  little  and  slight,  to  his  preparation,  his  eyes 
catch  these  names — both  those  of  his  own  and  the 
witnesses  of  the  other  side — they  are  imprinted  on  his 
memory,  he  carries  them  in  his  mind,  and  as  he  goes 
about  following  up  the  many  and  diversified  calls 
which  disperse  him  through  a  large  society,  there  is 
no  estimating  the  additional  testimony  that  he  will 
get  for  his  client,  and  the  crippling  and  the  checking 
that  he  will  work  to  the  adversary.  A  lawyer  must 
always  carry  his  cases  in  mind,  and  especially  should 
his  recollection  be  full  and  ready  of  the  testimony. 

There  must  also  be  attention  paid  to  the  docu- 
mentary proof.  If  the  lawyer  has  not  time  to  take 
abstracts,  he  should  have  copies.  The  same  argu- 
ments already  made  in  favor  of  his  abstracting 
pleadings    apply    here.      Even    if    he    hires    copies 

taken    he  had  better  train  himself  to  the  habit  of 
13 


194  CONDUCT    OF     LITIGATION. 

adding  an  abstract,  as  condensed  as  he  can  make  it 
consistently  with  clearness.  In  the  press  of  business 
and  the  "  law's  delay,"  when  his  case  is  at  last  reached 
some  years  after,  it  may  be,  with  his  head  full  of  a 
multiplicity  of  other  cases,  he  will  not  regret  that  he 
has  condensed  the  volume  of  the  testimony,  so  that 
he  can  gather  it  all  up  at  once  for  the  trial. 

When  the  document  is  important,  as,  for  instance, 
a  deed  containing  a  condition,  and  the  issue  is  on 
the  condition,  the  abstract  should  be  followed  by  a 
brief  statement  of  your  conception  of  its  legal  force 
and  effect.  This  you  will  often  find  yourself  altering, 
enlarging,  or  restricting.  Besides,  your  associate  will 
see  at  a  glance  your  views,  and  he  may  give  you 
valuable  corrections  or  additions. 

There  is  no  Procrustean  model  of  the  brief 
They  vary  as  much  as  cases.  It  is  but  the  accurate 
miniature  of  a  case.  If  the  case  is  simple,  the  brief 
will  be  simple ;  if  it  is  complex,  all  the  elements 
appearing  in  the  brief  will  make  it  complex  too. 

There  are  some  other  matters  to  be  thought  of. 
You  may  anticipate,  with  reason,  collateral  issues  of 
both  law  and  fact.  Thus  you  may  be  met  with 
serious  objection  to  some  of  your  offered  evidence. 
Whenever  you  can  anticipate  such  objection,  you 
should  prepare  to  answer  it,  and  your  prepara- 
tion  should  be  noted  at  the  proper  place  in  your 


JJRIhfS.  195 

brief.     So,  too,  3^011  may  prepare  objections  to  what 
you  anticipate  will  be  the  proof  of  the  other  side. 

Cautions  to  yourself  and  associate  are  not  out  of 
place.  Thus  Mr.  Warren,  in  the  work  from  which 
we  have  taken  so  much  in  this  chapter,  advises  the 
attorney  who  has  found  a  witness  to  be  too  eager 
and  zealous,  to  make  some  such  memorandum  in 
his  brief  opposite  to  the  proof  as — "  This  witness  is 
exceedingly  eager  and  zealous,  and  will  be  required 
to  be  held  with  a  tight  rein."  Addressing  the  attor- 
ney in  another  passage,  he  says  again — "  Be  sure  to 
apprise  counsel  in  your  briefs  of  every  blot  which 
you  think  it  probable  that  your  opponent  may  be 
able  to  detect  in  the  character  of  your  witnesses. 
This  is  a  matter  of  great  consequence." 

These  hasty  words  are  only  suggestive.  The 
lawyer  can  add  to  them  in  any  particular  case  by 
asking  himself,  and  answering  the  question,  "  In 
what  does  my  brief  fail  to  show  my  preparation  }  " 
When  a  brief,  thoroughly  and  in  a  right  arrange- 
ment, presents  a  thorough  preparation,  it  is  perfect. 
As  we  have  already  hinted,  the  brief  should  con 
tain  a  neat  draft  of  the  plan  of  conduct.  We  have 
been  sufficiently  full  on  the  subject  in  the  last  chap- 
ter. This  plan  is  the  key  to  unlock  the  whole. 
The  entire  preparation  is  condensed  in  it,  and  with- 
out it  the  brief  would  be  imperfect. 


19Q  CONDUCT    OF    LITIGATION. 

Lastly,  if  the  brief  is  voluminous,  it  should  be 
indexed.  The  use  and  economy  of  this  index  is  so 
apparent  that  I  will  say  no  more  concerning  it. 

I  now  subjoin  a  passage  of  considerable  length 
from  the  celebrated  Mr.  Warren.  My  own  differ- 
ences from  his  positions  have  already  been  inti- 
mated. The  reader  will  remember  that  he  is  ad- 
dressing attorneys  and  solicitors,  who  in  England 
can  never  act  as  counsel : 

"  Draw  your  briefs  with  care,  avoiding  intemper- 
ate language,  and  making  your  statements  and 
proofs  as  clear  and  terse  as  possible ;  remembering 
that  briefs  are  often  necessarily  read  hastily  by 
counsel,  whom  a  confused  and  prolix  statement  may 
prevent  from  readily  acquiring  a  correct  impression 
of  the  case,  or  make  them  even  take  a  wrong  one, 
which  it  may  be  too  late  to  correct. 

"  Give  the  pleadings  at  length  ;  not  contenting 
yourself  with  merely  indicating  their  substance  and 
effect.  A  sheet  or  two  spared  by  these  means  is  no 
compensation  for  the  serious  inconvenience  and 
dangers  often  attending  it.  Counsel  may  be  much 
mislead  by  your  so  doing.  The  cause  often  depends 
on  the  very  words  in  which  the  pleadings  are 
couched,  and  on  which  critical  issues  have  been 
taken.  I  saw  not  long  ago,  for  instance,  a  plaintiff's 
counsel  about  to  submit  to  his  adversary  owing  to 


BRIEFS.  197 

the  attorney  of  the  former  having  misled  him  as  to 
the  real  nature  of  the  pleadings.  He  had  said  as 
to  the  only  special  plea,  '  The  replication  denies 
the  agreement,'  which  was  proved  as  alleged  in  the 
plea ;  but  the  judge  pointed  out  that  the  plaintiff 
stood  much  more  favorably  on  the  record — his  repli- 
cation being  dc  injuria — which  put  in  issue  evejy 
traversable  fact  alleged  in  the  plea.  Now,  why  could 
not  the  replication  have  been  set  forth  fully  and 
correctly  in  the  brief  } 

"  Never  let  a  brief  go  into  counsel's  hands  with 
blanks  in  it  for  names,  dates,  or  sums  of  money.  It 
not  only  has  a  very  slovenly,  unbusiness-like  appear- 
ance, but  often  greatly  embarrasses  counsel,  who  may 
not  have  you  at  their  elbow  to  supply  them  with  the 
necessary  information.  No  brief  should  be  regarded 
by  you  as  complete,  till  you  shall  have  carefully  gone 
over  it  and  filled  up  every  blank  ;  or  if  that  be  for  any 
sufficient  reason  impracticable,  before  delivering  the 
brief  take  care  to  say  as  much  on  the  margin. 

"  When  there  are  two  or  more  briefs,  and  especially 
if  they  be  of  length,  or  intricate  in  detail,  or  refer 
to  many  documents,  use  your  utmost  efforts  to  have 
the  pages  of  all  the  briefs  numbered  alike,  so  that  any 
one  counsel  having  found  what  is  required  during 
the  progress  of  the  cause,  may  in  an  instant  place 
his  companions  in  the  same  situation.      Your  law 


198  CONDUCT     OF    LITIGATION. 

stationer  is  surely  bound  to  obey  your  orders  in  this 
respect,  I  have  heard  a  neglect  of  this  matter  often 
loudly  complained  of,  and  with  justice,  as  both  incon- 
venient and  irritating  in  sudden  exigencies. 

"  In  cases  of  a  little  more  difficulty  or  importance 
than  usual,  you  may  greatly  facilitate  the  labors  of 
counsel  and  enable  them  readily  to  do  their  duty, 
by  prefixing  to  the  brief  a  neat  analysis  of  the  case 
of  both  pleadings,  and  facts  referring  to  the  different 
pages  in  the  brief  where  they  will  be  found ;  and 
above  all  giving  an  alphabetical  index  of  the  names 
of  the  witnesses  and  the  pages  where  their  proofs 
are  placed. 

"  If  you  have  obtained  what  you  may  deem  an 
able  opinion  upon  the  case,  or  even  upon  the  evi- 
dence necessary  to  support  it,  copy  that  opinion  in 
your  brief  for  the  guidance  of  counsel  at  the  trial : 
whom  it  may  quickly  put  in  possession  of  the  true 
bearings  of  the  cause,  and  apprise  them  of  its  difficul- 
ties, timely  enabling  them  better  to  deal  with  them. 
The  most  eminent  leading  counsel  by  no  means 
regard  such  assistance  as  superfluous ;  but,  on  the 
contrary,  welcome  it.  More  than  once  have  I  seen 
them  when  a  cause  was  called  on  before  they  had 
time  to  read  their  briefs,  as  it  were  devour  the 
"  opinion "  written  by  some  able  and  experienced 
junior,  and  rise  soon  afterwards  wonderfully  possessed 


BRIEFS.  199 

Dflhe  case,  especially  when  engaged  for  the  defen- 
lant. 

"  Whenever  your  case  involves  localities,  let  mc 
entreat  of  you  to  take  the  trouble  of  giving  a  faith 
ful  sketch  of  the  loctis  in  quo.m.  one  of  the  pages  of 
your  brief,  or  on  a  separate  paper.  A  single  glance 
at  a  spirited  and  faitJifiU  sketch  of  the  scene  of 
action  will  be  worth  half  a  dozen  consultations.  It 
will  fix  the  matter  firmly  in  your  counsel's  mind, 
and  prevent  him  from  either  being  confused  himself, 
or  suffering  the  witnesses,  judge,  or  jury,  to  be  con- 
fused. Take  care  also  to  have  several  copies  in 
readiness  (being  able  to  prove  their  accuracy),  to 
lay  before  the  jury  while  counsel  is  addressing  them, 
a  matter,  that,  of  no  slight  importance  to  your 
client's  interests.  A  good  model  of  premises  or 
machinery  is  of  incalculable  service  in  giving  coun- 
sel, and  enabling  them  to  give  others,  a  clear  view 
of  the  case  which  it  illustrates.  During  last  Easter 
Term,  the  Court  of  Common  Pleas  was  occupied 
for  an  entire  day  with  a  troublesome  motion  for  a 
new  trial  in  a  patent  case.  There  was  no  model  to 
illustrate  the  statements  and  arguments  of  counsel, 
or  the  evidence  of  the  witnesses.  The  judges  found 
it  almost  impossible  to  deal  satisfactorily  with  the 
case  ;  and  at  the  close  of  the  day,  one  of  them  (Mr. 
Justice  Maule)  as  the  court  rose,  observed — '  In  the 


200  CONDUCT    OF    LITIGATION. 

absence  of  a  *modcl,  the  evidence  might  really  all 
have  been  read  the  wrong  way'. 

"  Take  special  care,  however,  that  your  plan  or 
model  h^  fair — perfectly  faithful — made  by  a  disin- 
terested person,  with  no  instructions  whatever  but 
to  prepare  an  impartial  and  accurate  representation 
of  the  reality  ;  one  which  will  be  acquiesced  in  by 
the  opposite  side,  and  by  the  witnesses.  This  will 
obtain  for  you  credit  with  both  the  judge  and  jury, 
for  the  fair  and  candid  spirit  in  which  you  have 
brought  forward  your  case ;  and  that  credit  may 
serve  to  turn  the  scale  in  your  favor  in  a  question 
of  doubt  and  difficulty.  An  opposite  course  of  con- 
duct is  almost  certain  to  prejudice  you  in  profes- 
sional and  public  estimation,  and  throw  discredit  on 
your  client  and  his  case,  seriously  endangering  one 
otherwise  characterized  by  bonajidcsy'' 

One  need  only  consult  the  rules  of  practice  In 
the  different  states,  and  hear  the  almost  universal 
use  of  briefs  in  America,  in  the  sense  of  a  string  of 
legal  positions,  with  supporting  authorities  cited,  to 
see  how  widely  we  differ  in  the  estimate  of  briefs 
from  our  English  brethren.  The  grade  of  attorneys 
never  was  separate  here  from  counsel.  Every  law- 
yer, I  suppose,  w^as  ambitious,  and  a  rogated  to  him- 
self the  rank  of  the  superior.  In  the  mother 
'  Warren's  Duties  of  Attorneys  etc.,  178,  <?/i-^^. 


BRIEFS.  201 

country,  it  was  the  duty  of  attorneys  to  prepare 
briefs,  but  as  he  was  no  attorney,  he  would  not  do 
the  de£"radinsf  work.  Thus  briefs  seem  to  have 
decHned  in  America,  or  rather  for  these  reasons  they 
never  seem  to  have  been  introduced  into  general 
use  here.  That  counsel  here  have  direct  contact 
with  the  witnesses  and  party,  and  are  all  the  w^hile 
personally  cognizant  of  all  the  details  of  the  case, 
not  learning  them  at  second-hand,  is,  to  my  mind,  an 
almost  incalculable  superiority  of  the  American 
over  the  English  system.  Napoleon  always  recon- 
noitered  his  battle-fields  in  person,  except  Water- 
loo. But  we  have  not  improved  our  system  into 
what  it  should  be.  Our  counsel  should  not  only 
get  up  a  case  better  than  the  English  attorneys,  but 
they  should  also  draw  better  briefs.  The  practice 
of  law  without  briefs  is  as  slovenly  and  primitive 
as  the  score  kept  with  chalk-marks.  Rather,  a  law- 
yer in  full  practice  should  feel  it  as  much  out  of  the 
bounds  of  safety  to  have  no  briefs,  as  it  would  be 
for  a  large  mercantile  house  to  keep  no  books.  Do 
but  note  one  of  our  brethren  who  practices  in  this 
slipshod  way.  He  soon  becomes  a  nuisance,  by 
keeping  in  his  possession  original  papers  which 
should  never  leave  the  office  of  the  clerk  of  the 
court.  He  never  recollects  exactly  the  contents 
of  documentary  evidence,  and  he  often  forgets  the 


202  CONDUCT    OF    LITIGATION. 

very  authorities  on  which  he  chiefly  relies  for  sup- 
port. This  is  all  wrong.  It  is  wasteful  of  time.  It 
is  criminal  negligence  of  the  client's  cause  entrusted 
Every  lawyer  should  be  able  at  any  time,  shut  up  in 
his  office,  without  any  assistance  except  his  brief  or 
the  memoranda  which  he  has  taken,  each  at  it 
appropriate  step  in  the  preparation,  to  give  a  clear 
statement  of  the  case.  And  a  lawyer  who  has  never 
tried  this  careful  preparation  of  briefs,  can  not  un- 
derstand how  their  very  making  facilitates  the 
conquest  of  the  case.  This  advantage  alone  is  more 
than  compensation  for  all  the  labor.  There  can  be 
no  attack  or  defense  too  well  meditated  or  under- 
stood, nor  can  the  other  side  be  too  well  anticipated, 
nor  can  there  be  too  careful  preparation.  And  it  is 
just  as  hard  to  accurately  shape  the  conduct  of  an 
intricate  case,  and  hold  such  conduct  in  your  head 
without  a  brief,  or  some  writing  answering  to  it,  as 
it  would  be  to  compose  and  get  by  heart  a  long  set 
speech  without  writing  any  of  it.  This  last  feat  can 
be  accomplished.  But  we  know  that  to  write  the 
speech,  and  afterwards  learn  it,  is  the  quickest  and 
best  way. 

I   have  to   add  a  last  caution,  and   then   I   have 
done  with  the  subject  of  this  chapter. 

You  are  not  to  cultivate  a  slavish  dependence  on 
j^our   brief,  as   the    repository    of  your   preparation 


BRIEFS.  203 

and  the  record  of  your  anticipations  and  premedi- 
tated plan  of  conduct.  You  anticipate  and  provide 
for  as  much  as  you  can,  in  order  to  have  larger 
supplies  out  of  which  to  meet,  on  the  sudden,  all 
exigencies.  The  ground,  and  possibly  the  disposi- 
tions of  his  enemy,  are  known  to  the  general  before 
the  battle  begins.  But  he  does  not  seek  to  fight  a 
set  battle  any  more  than  the  lawyer  anticipates  a  set 
trial.  Neither  will  be  surprised  by  any  action  of  the 
other  side,  however  sudden  or  unexpected.  The 
plan  of  contest  of  each  is  flexible,  and  readily  meets 
everything  unforeseen  at  the  time  it  was  made. 
The  most  happy  extemporaneous  efforts  of  speech 
or  action  are  m^ade  by  men  who  have  the  whole 
business,  as  it  were,  by  heart.  Note  an  old  lawyer 
who  comes  to  argue  a  law-point.  Possibly  he  has 
the  scheme  of  his  argument  on  paper.  A  question 
from  the  judge  indicates  a  new  view.  The  lawyer  is 
seen  to  abandon  his  premeditated  argument,  and  he 
speaks  now  only  to  the  suggestions  that  fall  from 
the  bench.  Why  can  he  do  this  }  Because  he  is 
thorough  master  of  the  subject,  and  being  that,  he 
can  present  it  from  any  standpoint.  And  so  the 
lawyer  must  be  when  ready  for  trial.  His  brief, 
containing  the  result  of  a  year's  assiduous  prepara- 
tion, it  may  be,  will  often  be  abandoned  when  he 
is  in  the  midst  of  the  exciting  scene.     There  b      ■ 


204  CONDUCT    OF    LITIGATION. 

been  dc:velopments  that  he  did  not  anticipate.  The 
whole  phase  of  the  case  seems  changed.  But  out  of 
his  skillful  preparation  he  has  come  not  only  armed 
to  meet  what  is  anticipated,  but  armed,  too,  to 
meet  that  which  is  not.  If  you  have  never  looked 
into  the  case  till  the  night  before  the  trial,  and  you 
then  win  it  by  some  unexpected  stroke  after  a  great 
menace  of  defeat,  you  rejoice.  Your  ingenuity 
pleases  you,  and  you  feel  that  you  are  a  great  man. 
Out  of  what  was  that  stroke  of  yours  made  wb"ch 
laid  your  adversary  low  1  It  was  from  a  knowledge 
that  you  had  acquired  in  only  a  few  hours.  Perhaps 
had  you  come  with  a  careful  preparation,  there  never 
would  have  been  that  dark  moment  which  threat 
ened  you.  You  might  have  foreseen  and  provided 
against  it,  or  perhaps,  too,  you  might  have  planned 
and  executed  a  much  more  brilliant  stroke  than  you 
did.  Does  it  not  stand  to  reason  that  you  should 
be  more  ingenious  with  a  case  which  you  have  long 
and  well  studied,  than  with  one  to  v/hich  you  have 
only  given  a  few  hours'  attention  }  Of  course  the 
supplies  are  more  abundant  from  a  larger  than  from 
a  smaller  field. 

Your  preparation  and  your  brief  are  not  for  only 
a  set  conduct  of  the  case.  They  are  a  training  for 
grappling  with  your  combatant,  wherever  and  when- 
ever fortune  may  dictate  that  you  engage. 


BOOK    II. 


CHAPTER   I. 


INTRODUCTORY. 


We  have  already  often  illustrated  our  subject 
from  the  correspondences  of  the  military  art,  and  we 
have  said  that  we  are  half  inclined  to  entitle  this 
book  "  The  Tactics  of  Litigation."  In  warfare,  after 
the  campaign  has  been  planned,  and  strategy  in  its 
execution  of  the  plan  has  gathered  the  army  on  the 
decisive  point,  the  battle  must  be  fought  according 
to  another  manual  of  different  principles.  Strategy 
concentrates  the  greatest  possible  force  on  the  de- 
sired point,  while  tactics  gets  out  of  the  masses  so 
concentrated  the  greatest  possible  fighting  achieve- 
ment. And  thus  in  litigation  a  careful  preparation 
has  brought  the  parties  to  prove  the  fortunes  of  a 
trial,  which  trial  is  to  be  conducted  according  to 
principles  other  than  those  of  preparation.  March- 
ing the  army  is  a  different  thing  from  fighting  the 
army,  and  so  preparing  the  case  is  different  from  try- 
ing the  case. 

The  proper  Conduct  in  Court,  as  we  choose  to 

name  the  subject  of  this  book,  is  the  art  of  making 

in  the  forensic  controversy  all  of  your   advantages 

count,  and  of  crippling  as  much  as  you  can   those  o. 

207 


2o8  INTR  OD  UC  TOR  Y. 

your  adversary.  You  are  to  make  your  case  as 
strong  as  possible,  and  weaken  his  as  much  as  possi- 
ble. 

Different  qualities  are  needed  now  in  the  lawyer. 
Excellence  and  the  crown  of  success  are  much  more 
brilliant,  for  the  effort  is  generally  public,  and  many 
see  and  comprehend,  while  the  most  superb  prepara- 
tion will  only  be  understood  by  the  lawyers  engaged. 
The  showy  counsel,  who  is  the  attraction  of  all  eyes 
and  ears  in  the  court -room,  is  often  but  the  mouth- 
piece, and  inefficient  at  that,  of  some  hard-working 
and  cool-headed  associate,  who  has  industriously 
collected,  skillfully  arranged  and  grouped  the  mate- 
rials of  his  own  side,  and  has  with  the  divination  of 
genius  anticipated  and  provided  against  much  of 
the  other  side.  But  to  manage  a  trial  ably  from 
beginning  to  end,  requires  a  high  degree  of  peculiar 
talent.  In  the  office  and  consultation-room  there  is 
an  opportunity  of  procrastination  and  re-examina- 
tion, but  in  court,  the  counsel  conducting  must  in 
many  straits  reach  his  conclusions  by  a  flash,  and  act 
upon  them  when  reached  as  confidently  as  if  he  had 
been  thinking  over  them  for  weeks.  To  know  just 
when  you  have  done  with  your  own  witness,  to  de- 
tect at  once  the  hidden  inconsistency  or  self-contra- 
diction of  a  hostile  witness,  and  to  decide  well  at  once, 
whether  to  leave  it  as  it  is  for  the  argument,  or  take 


CONDUCT    OF    LITIGATION.  209 

the  risk  of  having  it  explained  while  pushing  it  into 
further  and  clearer  development,  to  grasp  thoroughly 
at  once  the  entire  case  at  any  time  made  for  the 
other  side,  to  perceive  at  once  the  leaning  of  the 
court,  and  to  lead  him  if  adverse  on  other  ground, 
or  to  confirm  him  if  favorable,  to  read  every  meaning 
look  of  counsel,  party  witness,  juror,  or  judge — these 
are  the  daily  achievements  of  the  ready  lawyer. 

It  is  rarely  that  a  man  has  the  greatest  talent  to 
prepare  a  case  well,  conjoined  with  the  greatest 
talent  of  conducting  it  well.  But  generally  the 
talents  in  some  degree  co-exist.  Napoleon  was  not 
considered  the  match  of  his  Marshal,  Moreau,  in 
tactics,  though  infinitely  superior  in  strategy  and 
general  militaiy  ability.  History  is  full  of  generals 
and  officers  who  never  evince  any  force  of  character 
until  surprised  into  battle  where  fortune  seems  to 
fight  for  them ;  and  so  there  is  a  class  of  ready  and 
shrewd  advocates  who  defer  preparation  to  the  last 
moment,  and  yet  their  general  success  is  wonderful. 

When  the  average  of  cases  tried  is  carefully  con- 
sidered, it  will  be  found  that  each  party  approaches 
the  trial  with  considerable  knowledge,  to  borrow  a 
term  from  card  playing,  of  the  others  hand.  There 
will  be,  however,  a  portion  of  each  side  unknown  or 
not  properly  understood,  and  generally  the  event 
will  turn  on  the  management  and   nature  of  these 


2IO  INTRODUCTORY. 

unknown  particulars.  The  striking  material  points 
of  the  case  will  be  forgotten  by  nobody,  and  they 
will  be  rightly  attended  to,  but  these  unforeseen 
matters,  such  as  the  sudden  desertion  or  self-contra- 
diction of  an  important  witness,  an  unexpected 
attack  or  some  astonishing  ruling  of  the  court,  an 
unanticipated  case  made  by  the  adversary — these  are 
the  matters  which  require  the  peculiar  tact  of  the 
lawyer  who  can  well  conduct  a  trial.  This  is  not 
the  talent  for  advocacy,  nor  is  it  that  which  properly 
directs  preparation.     Advocacy  is  only  a  part  of  it. 

Now,  our  first  remark  is  to  repeat  what  we  have 
roundly  asserted  before,  that  the  best  conduct  in 
court  lias  been  generally  preceded  by  the  bestpre- 
paration.  It  does  not  require  argument  to  show  the 
great  superiority  of  that  adversary  who  has  before- 
hand the  most  extensive  knowledge  of  the  case 
which  is  to  be  tried.  Out  of  his  better  information 
he  will,  other  things  being  equal,  often  worst  and 
discomfit  his  opponent.  Sometimes  a  party  will  be 
vanquished  where  he  is  the  stronger,  just  because  he 
has  made  no  careful  investigation  to  teach  him  his 
strength. 

But  we  do  not  say  that  the  same  man  who  has 
well  prepared  must  conduct  the  trial.  That  counsel 
v/ho  can  best  lead  should  lead.  And  he  that  leads 
should  have  thoroughly  in   his  head  and  by  heart 


IN  TROD  UC  rOR  V.  2  r  i 

the  preparation  of  the  case  by  whomsoever  that  has 
been  made.  The  brief,  if  well  digested  and  exhaus- 
tive, will  nearly  always  give  the  necessary  informa- 
tion. It  should  be  studied  and  mastered.  T!ic 
antecedent  preparation,  the  importance  of  which  can 
never  be  overrated,  it  is  well  now,  as  we  are  about 
to  test  and  use  its  results,  to  analyze  again,  in  order 
to  have  it  once  more  impressively  contemplated. 
So  we  remind  the  reader  that  this  preparation  for 
the  trial  consists:  (i)  of  a  most  industriously 
gathered  and  complete  collection  of  all  the  particu- 
lars of  the  lawyer's  own  side ;  (2)  of  the  same  col- 
lection, as  far  as  has  been  possible,  of  all  the  particu- 
lars of  the  other  side  ;  (3)  of  the  proper  classification 
of  all  these  particulars  ;  (4)  of  a  plan  of  conduct 
which  is  the  proper  combination  of  the  o'l.cr  three, 
a  plan  which  in  its  beginning  is  firmly  set  and 
planted  on  the  known  and  material  facts  and  law, 
but  in  the  rest  is  flexible  and  pliant,  and  turns  with 
elastic  readiness  to  meet  every  unanticipated  occur- 
rence at  the  trial. 

Our  subjects  run  into  each  other,  or  rather  the 
demarcation  of  conduct  otU  of  coti7't  from  conduct  m 
cou7^t,  is  only  for  the  purpose  of  making  the  student 
understand  the  whole  of  Conduct  of  Litio:ation.  It  is 
in  this  plan  that  the  two  parts  cohere  so  closely  that 
one  is  but  the  spontaneous  continuation  of  the  other, 


212  CONDUCT    OF    LITIGATION. 

The  carefully  collected  and  accurately  geneialized 
knowledge  of  preparation,  as  above  set  forth,  is  the 
fulcrum  of  attack  or  defense  at  the  trial.  But  it 
must  be  nothing  more  than  a  fulcrum.  The  good 
tactician  is  not  slavishly  dependent  on  his  prepara- 
tion, which  he  makes  only  the  beginning, — the  plant- 
ing and  fixing  immovably  the  fulcrum  if  he  can, — 
but  which  others  inferior  often  show  by  their  acts 
that  they  conceive  to  be  the  end  of  the  work. 
These  drudges  are  never  able  to  get  beyond  their 
brief,  which  they  seem  to  regard  as  a  premeditated 
report  of  the  trial.  They  will  make  out  the  case 
only  pro  forma. 

But  after  the  deal,  the  game  is  to  be  played  ;  after 
strategy  has  dictated  the  combinations,  and  the  dis- 
positions have  been  made,  the  battle  is  to  be  fought ; 
and  to  fight  the  battle  of  a  case  well,  the  lawyer 
must  be  master  of  the  case.  We  say  an  author  is 
master  of  his  subject  when  he  maintains  his  ground 
against  all  opposers,  each  attacking  it,  may  be,  in  a 
new  and  unexpected  place.  So,  likewise,  when  a 
lawyer  trying  his  case  puts  in  every  particle  of  his 
own  evidence,  clips  off  every  particle  that  he  can  of 
the  adversary's  that  would  damage,  who  from  begin- 
ning; to  end  overlooks  no  advantage,  who  objects 
and  excepts  in  the  right  place,  and  who  when  the 
jury  retires  can  be  said  to  have  overlooked  nothing. 


I  NT  ROD  UCTOR  Y.  213 

he  has  achieved  a  triumph,  for  it  is  a  triumph  even 
if  he  loses.  Napoleon  in  one  of  his  maxims  says : 
"  A  general-in-chief  should  ask  himself  frequently  in 
the  day,  '  What  should  I  do  if  the  enemy's  army  ap- 
peared now  in  my  front,  or  on  my  right,  or  my  left' 
If  he  have  any  difficulty  in  answering  these  ques- 
tions his  position  is  bad,  and  he  should  seek  to  rem- 
edy it."  And  thus  has  the  intelligent  lawyer  pre- 
pared for  the  day  of  trial.  He  has  not  anticipated 
everything, — all  the  details, — for  that  is  impossible, 
but  he  has  by  repeated  self-questionings  at  last 
shaped  and  mobilized  his  ease  so  that  he  is  ready  for 
any  turn,  however  sudden,  during  the  trial. 

We  may  classify  the  objects  of  conduct  in  court 
as  follows : 

1.  Your  own  carefully  prepared  combinations 
are  to  be  put  before  the  court  in  the  best  form  and 
shape. 

2.  You  are  to  see  that  the  adversary  gets  no  ad- 
vantage of  law  or  evidence  that  his  case  is  not  fairly 
entitled  to. 

3.  You  are  to  put  in,  as  the  trial  progresses,  what 
further  combinations,  formed  ex  tempore  out  of  ma- 
terials at  hand,  that  you  may  be  able  to  make. 

There  should  be  a  consultation  before  the  trial, 
and  the  whole  line  of  conduct  carefully  mapped  out 
and  agreed  upon;  who  shall  lead,  too,  should  be  un 


214  CONDUCT    OF    LITIGATION. 

derstood.  The  best  man  for  each  particular  place 
must  be  put  in  it.  Some  lawyer  will  conduct  an  ex- 
amination better  than  his  associates — if  so,  the  post 
should  be  given  him,  though  he  be  not  the  leader. 
Sometimes  an  important  legal  argument  will  be 
anticipated  somewhere  in  the  trial :  let  it  be  settled 
who  shall  make  it.  Nothing  is  more  irritating  to  the 
thorough  lawyer  than  to  see  several  counsel  con- 
ducting a  trial  in  no  concert  with  each  other,  no 
leadership  acknowledged,  and  each  associate  endea- 
voring to  show  off  his  own  superiority  to  all  the 
others.  In  England  the  established  usages  of  the 
profession  settles  the  question  of  leadership.  In  our 
country  the  client  can  determine  who  shall  lead, 
but  the  question  is  generally  decided  by  the  sponta- 
neous consent  of  the  lawyers  engaged.  This  lawyer 
so  set  up  to  lead,  should  not  be  too  anxious  to  ex- 
hibit his  authority  nor  superior  familiarity  with  and 
understanding  of  the  case. 

At  the  consultation  the  witnesses  and  the  party 
should  be  present  if  possible,  and  every  detail  in  the 
brief  should  be  verified  if  true,  or  corrected  if  false. 
Especially  should  the  witnesses  be  attended  to.  As 
they  have  been  examined  and  re-examined  before, 
they  can  be  soon  disposed  of  now.  But  they  should 
be  reviewed  and  searched  on  every  material  point. 

And  the  legal  positions  should  be  scanned  with 


INTRODUCTORY.  215 

close  scrutiny".  In  fact  the  whole  case  must  be  con- 
templated. There  generally  occur  changes  and  new 
developments  to  the  very  last.  Let  all  such  be 
looked  at  calmly  and  boldly,  and  be  provided  for. 

It  will  be  decided  at  this  meeting  whether  there 
shall  be  demurrer  to  the  pleadings  of  the  other 
side,  whether  the  fight  shall  be  opened  on  the  merits, 
or  v/hether  lighter  legal  fence  shall  be  resorted  to. 
Often  a  well-taken  exception  may  relieve  you  when 
you  have  a  reason  to  desire,  but  none  to  enforce,  a 
continuance. 

And  while  on  the  subject  of  consultations,  we 
may  as  well  say,  that  the  counsel  of  the  same  side 
should  constantly  confer  with  each  other  at  every 
good  opportunity  through  the  trial. 

We  must  again  remind  the  reader  that  there  are 
many  single  issues  which  are  easily  come  at,  and  do 
not  require  all  the  circumstance  and  parade  of  pre- 
paration and  conduct  which  we  have  been  discuss- 
ing. These  easy  cases  will  almost  take  care  of  them- 
selves. Laborious  examination  before  and  careful 
preparation  after  accepting — well-planned  conduct 
and  anxious  consultations  are  for  those  which  need, 
from  their  difficulty  and  intricacy,  such    treatment. 

Before  leaving  this  chapter  it  is  well  to  say  a 
word  as  to  continuances  and  selecting  the  jury. 
The  law    explains    clearly  the   different  grounds  of 


2i6  CONDUCT    OF    LITIGATION. 

continuance,  and  to  enumerate  them  is  not  our  pur- 
pose. If  some  legal  cause  of  continuance  exists 
which  materially  damages  the  case,  of  course  there 
is  no  discretion,  and  the  case  must  be  continued. 
But  there  are  many  times  when  you  fear  a  trial,  and 
would  prefer  waiting.  Thus,  just  after  a  homicide 
the  feeling  against  the  defendant  is  often  resistless, 
sweeping  on  court  and  jury  to  his  sure  conviction. 
In  a  few  months  the  public  would  become  impartial 
Here  the  lawyer  will  continue  if  he  can.  Again, 
after  even  what  may  appear  the  maturest  study  of 
the  case,  you  feel  that  you  have  not  mastered  it. 
You  sometimes  have  a  presentiment,  which  is  by  no 
means  the  tempting  whisper  of  procrastination,  that 
you  will  strengthen  your  case  if  you  do  not  try  too 
speedily.  I  have  known  cold-blooded  lawyers  to  cal- 
culate the  chances  of  the  death  of  adverse  witnesses 
whose  testimony  had  not  been  perpetuated.  I  knew 
anothtT  shrewd  and  successful  advocate  who  would 
try  his  bad  cases  and  would  not  try  his  good  cases  at 
the  0(;tober  Term  in  a  particular  county,  where  the 
people  always  took  a  more  than  usual  interest  in  the 
political  campaign  just  then  near  closing  in  a  State, 
Congressional,  or  Presidential  election.  It  behooves 
the  lawyer  to  stand  always  ready,  if  he  can,  with  a 
good  cause  of  continuance.  He  is  not  to  prepare  a 
perjured  showing  any  more  than  he  is  to  prompt  a 


INTRO  D  UCTOR  V.  217 

a  witness  to  feign.  By  always  keeping  his  eyes 
about  him  in  the  case,  he  will  generally  ha\e  in 
his  power  the  enviable  election  of  trying  or  not  try- 
inof.  "  It  is  said  that  when  Schombercr  was  told 
that  the  enemy  was  advancing  and  was  determined 
to  fight,  he  answered  with  the  composure  of  a  tacti- 
cian confident  in  his  skill,  '  That  will  be  just  as  we 
may  choose.'  " '  It  is  not  always  in  the  power  of  the 
lawyer  to  accept  or  decline  a  trial,  but  he  should 
endeavor  to  have  such  a  command  of  a  case. 

And  it  is  the  business  of  the  lawyer  preparing,  to 
anticipate  and  provide  against  the  meditated  contin- 
uance of  the  adversary  if  possible.  It  is  not  enough, 
that  you  be  able  to  accept  or  decline  an  offered  trial, 
but  you  should  be  so  prepared  as  to  force  your  adver- 
sary into  a  trial  if  you  choose.  If  you  can  discover 
in  time  his  meditated  ground  of  continuance,  you 
may  provide  against  it.  The  law  sometimes  allows 
counter-showings  or  admissions  of  the  expected  proof 
of  absent  witnesses.  The  showing  too,  when  scrutin- 
ized carefully,  may  be  demonstrated  to  be  only  appa- 
rently good.  Or  there  may  be  some  reply  by  the  par- 
ty wishing  a  trial  which  may  avoid  the  showing.  Thus 
on  a  bill  filed  to  recover  a  tract  of  land,  and  for  an 
account  of  the  mesne  profits,  the  complainant  being 
very  anxious  to  tiy,  feeling  that  he  had  a  certain  case 
'  Macaulay,  Hist.  Eng.  Chap   VIII. 


2i8  CONDUCT    OF    LITIGATION. 

met  a  strong  showing  of  the  absence  of  witnesses  to 
prove  the  profits  of  the  land  by  striking  out  that  part 
of  his  bill  claiming  such.  The  defendant  was  insol- 
vent, and  the  complainant  really  made  no  sacrifice.* 

So  much  for  the  subject  of  continuances  :  only 
that  we  would  have  no  lawyer  cultivate  a  slowness  to 
try  his  cases.  We  see  lawyers  who  never  wish  to 
try.  They  appear  always  afraid  to  try,  and  their 
ingenuity  in  devising  continuances  is  for  a  long 
while  exhaustless.  As  we  have  already  hinted,  a 
lawyer  should,  if  he  can,  try  or  not  try,  according  to 
the  dictates  of  a  sound  policy. 

We  will  now  add  a  few  words  as  to  the  selection 
of  the  jury.  The  panel  should  be  well  studied.  It 
is  a  duty  too  often  neglected.  A  mis-trial  or  an  ad- 
verse verdict  is  often  the  consequence  of  such  neg- 
lect. If  the  lawyer  will  but  use  all  his  opportuni- 
ties of  studying  the  panel,  his  proper  action  is  so 
plain,  that  we  need  not  dwell  longer  upon  it.  We 
therefore  quit  the  subject,  saying  to  the  lawyer,  "  Al- 
ways study,  as  well  as  you  can,  the  panel  from  w^hich 
your  j  ury  will  be  taken." 

We  will  now  proceed,  i-i^r/^/Zw,  with  what  appear 
to  be  the  natural  heads  of  this  Second  Book.  It 
may  be  shorter  than  the  other,  and  yet  we  shall  try 
to  put  down,  in  a  rudimentay  way,  everything  of 
importance  in  the  conduct  of  causes  in  court. 


CHAPTER    II. 

OPENING    THE    PLEADINGS    AND    OPENING    THE    CASE. 

The  case  being  called  on,  and  not  continued  or 
postponed,  the  jury  selected  and  sworn,  the  plaintifif 
is  first  to  open  the  pleadings  and  the  case.  The 
American  practice  at  Nisi  Prius  is  strikingly  differ- 
ent from  the  English,  and  we  believe  can  be  shown 
to  the  unprejudiced  much  superior.  In  England  the 
junior  counsel  for  the  plaintiff  opens  the  pleadings : 
"  that  is  to  say,  he  states  to  the  jury  the  proceedings 
through  which  the  issue  or  issues  have  been  arrived 
at,  which  they  have  to  try."  '  And  after  the  plead- 
ings have  been  opened  by  the  junior,  the  leader 
makes  a  statement  of  the  case  for  the  plaintiff,  which 
gives  in  detail  all  of  his  evidence.  This  is  called 
opening  the  case.  The  plaintiff  then  goes  through 
with  his  evidence,  and  when  it  is  closed  the  plain- 
tiff's counsel  will  be  heard  no  more,  if  the  defendant 
introduces  no  evidence.  The  defendant's  counsel 
then  opens  his  defense.  If  he  has  decided  to  put  in 
no  evidence,  all  that  he  says  will  be  a  discussion  oj 
'  Cox,  Adv.  335. 


220  CONDUCT    OF    LIT IG  AT  ION. 

the  plaintiff's  evidence,  in  order  to  show  if  he  can 
that  it  has  failed  to  support  the  alleged  right  to  re- 
cover. But  if  he  is  going  to  introduce  evidence,  he 
will  not  only  discuss  that  of  the  plaintiff,  but  he  will 
make  a  detailed  narrative  of  his  own  proofs.  After 
this  address  and  his  evidence  is  gone  through,  the 
leader  for  the  plaintiff  has  the  last  word  to  the  jury, 
called  the  general  reply. 

But  in  America  the  pleadings  and  the  case  are 
opened  usually  by  the  same  counsel — the  statement 
by  either  the  plaintiff's  or  defendant's  counsel 
is  usually  very  brief,  and  the  argument  of  both 
sides  is  made  to  the  jury  after  the  evidence  is  all  in. 
In  our  chapter  on  the  Argument,  we  shall,  we  think, 
briefly  show  this  to  be  the  better  practice. 

There  is  no  uniform  rule  settling  which  one  of 
the  counsel  shall  open  either  for  the  plaintiff  or  de- 
fendant. I  have  noted  a  tendency  to  cede  it  to  the 
junior  counsel,  and  I  never  knew  the  opening  of  the 
pleadings  given  to  one  counsel,  and  the  opening  of 
the  case  to  another. 

It  must  be  remembered,  that  here  in  America 
where  it  is  the  ric^ht  of  each  side  to  discuss  the  evi- 
dence  fully  after  it  is  closed,  that  opening  either  the 
plaintiff's  case  or  the  defense  is  not  of  the  importance 
which  it  is  in  England.  Yet  an  opening  should  be 
neatly  made,  however  brief  it  may  be.     And  in  treat- 


OPENING.  221 

ing  of  the  subject,  we  will  adopt  the  English  dis- 
tinction, and  treat  of  opening  the  pleadings  and  of 
opening  the  case  separately,  though  here  they  are 
not  at  all  distinguished  in  practice. 

As  to  opening  the  pleadings,  we  will  begin  with 
a  passage  from  our  English  guide,  which  seems  to  us 
very  full  and  satisfactory,  all  of  it  being  entirely  ap- 
plicable here,  however  much  an  English  trial  at  N'lsi 
Prills  may  differ  from  one  in  America  in  other 
respects : 

"  This  should  be  done  in  the  shor'test  and  most 
smiple  manner.  Nothing  can  be  more  absurd,  than 
to  hear,  as  one  often  does,  a  long  string  of  techni- 
calities read  to  a  jury,  to  whom  every  second  word 
must  be  unintelligible,  and  the  effect  of  which  must 
be  to  perplex  them  at  the  very  beginning  of  their 
task,  and  thus  to  some  extent  prevent  them  from  ap- 
proaching it  with  such  clear  intelligence  as  if  it  had 
been  introduced  to  them  in  plain  English.  If  the 
form  of  opening  the  pleadings  be  requisite  at  all,  it 
should  be  so  done  as  to  be  understood  by  those  to 
whom  it  is  addressed  ;  and  if  it  be  not  requisite  it 
ought  to  be  abolished.  But  in  truth,  if  done  judi- 
ciously it  would  be  a  useful  proceeding,  for  it  would 
give  to  the  jury  a  bird's-eye  view  of  the  case,  and  en- 
able them  the  better  to  understand  the  subsequent 
statements.         .    . 


222  CONDUCT    OF    LITIGATION. 

"  Make  your  statement  intelligible  to  the  jury 
by  putting  it  in  an  intelligible  shape,  and  in  lan- 
guage which  they  can  understand,  as  thus : 

" '  Gentlemen  of  the  jury  : — In  this  case  John  Doe 
is  the  plaintiff,  and  Richard  Roe  is  the  defendant. 
The  action  is  brought  to  recover  the  sum  of  21/. 
and  interest,  being  the  amount  of  a  bill  of  exchange 
drawn  by  plaintiff  upon,  and  accepted  by  defendant. 
In  answer  to  this  claim  the  defendant  has  pleaded 
ist,  that  he  did  not  accept  the  bill ;  2d,  that  he  has 
paid  it ;  3d,  that  it  was  obtained  by  fraud  ;  4th,  that 
no  consideration  was  given  for  it.  Upon  these 
pleas  issue  has  been  joined,  and  these  are  the  ques- 
tions you  have  to  try.'  "  ' 

The  pleadings  are  opened  to  put  both  court  and 
jury  in  possession  of  the  issue  to  be  tried.  The  jury 
being  laymen,  need  a  plainer  and  more  prolix  open- 
ing than  the  judge.  If  the  pleadings  are  long  and 
intricate  they  should  always  be  read,  though  there 
be  an  offer  to  waive  the  reading.  And  before  such 
reading,  a  lucid  analysis  and  statement  of  them 
should  be  made  orally  for  the  benefit  of  both  judge 
and  jury.  No  long  document  should  ever  be 
read  without  a  brief  statement  of  the  points  to 
which  it  is  read.  And  the  judge  needs  this  prepara- 
tion as  well  as  the  jury.     We  are  talkers  by  nature 

'  Cox,  Adv.  335,  e/  scq. 


OPENING.  223 

and  readers  by  art.  The  judge  and  the  jury  both 
would  prefer  being  talked  to,  to  being  read  to.  If 
the  pleadings  are  short,  their  reading  rnay  be 
omitted,  but  if  they  are  long  and  intricate  after  the 
statement  made  as  we  have  suggested,  let  them  be 
read.  The  jury  now  will  understand  even  the 
technical  terms,  and  the  judge  will  pick  out  easily 
the  exact  issue,  and  correct  any  mis-statement  of 
yours,  whether  of  omission  or  commission. 

The  pleadings  having  been  opened,  it  is  next  in 
order  in  England  to  open  the  plaintiff's  case  in 
extenso.  "  As  a  general  rule,  the  statement  of  the 
case  for  the  plaintiff  should  be  calm,  temperate,  and 
dignified,  orderly  in  arrangement,  lucid  in  language, 
and  as  brief  as  the  facts  to  be  told  will  permit.'" 
The  same  English  author  also  thus  counsels  the 
leader : 

"  You  Vv^ill  begin  of  course  with  an  account  of 
the  parties,  who  and  what  they  are,  and  the  circum- 
stances that  led  to  the  present  dispute ;  then  you 
will  state  with  precision  the  nature  of  the  dispute 
itself,  and  whether  it  is  upon  a  question  of  law,  or  of 
fact,  or  both,  with  the  very  points  at  issue,  the  one 
for  the  information  of  the  court,  and  the  other  for 
the  information  of  the  jury,  that  attention  may  be 
directed  more  readily  and  surely  to  your  evidence 
'  Cox,  Adv.  338. 


224  CONDUCT    OF    LITIGATION. 

as  it  bears  upon  those  points.  Of  so  much  impor- 
tance  is  this,  that  you  should  take  some  pains  by 
previous  preparation  to  put  them  into  the  most 
distinct  shape,  and  you  should  repeat  each  one 
totidefn  verbis  whenever  you  introduce  your  state- 
ment, and  when  you  close  the  evidence  that  bears 
upon  it.  Then  taking  each  of  these  questions  in 
turn,  state  in  the  form  of  a  narrative,  the  proofs  you 
propose  to  produce  in  order  to  its  establishment, 
and  in  so  doing  be  very  careful  to  show  no  misgiv- 
ings about  it,  by  anticipating  objections,  apologizing 
for  defects,  or  making  an  effort  to  give  weight  to 
certain  witnesses,  for  you  must  assume  that  they  are 
unimpeachable  until  they  are  shaken  by  your 
opponents,  and  their  testimony  to  be  conclusive 
until  it  is  shown  to  be  otherwise." 

"  Strange  as  it  may  appear,  there  is  nothing  more 
difficult  in  the  art  of  advocacy,  than  effectively  to 
open  a  case  to  a  jury.  The  proof  of  this  is  the 
rarity  of  the  exhibition.  Flow  few  of  our  advocates 
accomplish  it  to  the  entire  satisfaction  of  a  critical 
listener  ! 

"  It  is  your  object  to  convey  to  them  [the  jury] 
and  to  the  court  a  history  of  your  case,  so  that  they 
may   thoroughly    understand   what   is   the   subject- 


OPENING.  225 

matter  of  the  contention,  upon  what  grounds  of 
claim  or  complaint  you  come  into  court,  and  the 
evidence  by  which  you  purpose  to  establish  them. 

'  Perhaps  the  test,  whether  you  have  done  all  that 
you  should  do  previously  to  describing  your  testi- 
mony may  be  thus  put :  *  Have  you  made  out  such 
a  case  by  your  facts  and  arguments,  that  if  you 
prove  these  facts  and  they  be  unanswered,  the  jury 
would  be  convinced  that  your  claim  or  complaint 
was  justly  founded,  and  give  you  their  verdict  ?' 

"  This  accomplished,  and  not  before,  you  should 
proceed  to  state  the  particular  evidence  by  which 
you  propose  to  establish  the  facts  you  have  de- 
tailed." ■ 

These  passages  show  the  opening  of  the  case  to 
be  more  important  in  England  than  in  America. 
Still,  even  here  it  is  one  of  the  advantages  of  the 
initiative  which  should  never  be  lightly  tossed  away, 
where  there  is  any  difficulty  in  understanding  the 
case.  As  already  suggested,  the  counsel  opening 
must  make  two  divisions  of  his  address :  one  to 
apprise  the  court  of  the  questions  of  law  which  are 
made,  and  the  other  to  explain  clearly  to  the  jury 
the  issue  ol  fact  they  are  to  pass  upon,  together  with 
a  compendious  anticipation  of  the  evidence,  instead 

'  Cox,  Adv    339,  e*.  'seq. 


226  CONDUCT    OF    LITIGATION. 

of  the  detailed  statement  of  the  proofs  which  fill  the 
leader's  opening  in  Eng^land.  There  is  no  need  that 
these  divisions  be  formal.  Often  the  counsel  will  be 
at  the  same  time  addressing  court  and  jury  both, 
but  still  as  what  he  then  says  is  composed  of  the 
two  elements,  law  and  fact,  the  one  is  for  the  court 
and  the  other  for  the  jury. 

This  opening  is  to  present  only  a  general  idea  of 
the  case,  and  it  is  not  to  go  into  detail.  It  must  give 
such  an  outline  as  will  serve  the  purpose  of  a  well- 
considered  argument  prefacing  a  play,  or  a  book  of 
an  epic,  to  impart  to  the  hearer  such  a  general 
preconception  that  he  will  easily  understand  the 
details  as  they  are  evolved.  Its  main  essential  is  a 
brief  lucidness.  And  the  good  judgment  of  the  coun- 
sel must  inform  him  what  to  say  and  how  to  say  it; 

It  is  a  great  blunder  to  have  the  opening 
alidress  too  long.  The  juries  here  only  expect 
a  long  speech  after  they  have  heard  the  evidence. 
The  author  observes,  however,  in  the  courts  to 
which  he  has  access,  the  opposite  fault.  He  often 
sees  the  jury  rousing  up  to  learn  the  facts  from  the 
speeches.  To  the  honor  of  our  country  and  our 
democratic  institutions,  juries  everywhere  are  in  the 
main  honest,  and  possessed  with  great  desire  to  find 
and  do  the  right  between  contending  parties.  But 
how  can  they  perform  this  high   duty,  unless  all  the 


OPENING.  227 

special  instruction  which  they  need  as  to  the  merits 
of  the  case  is  given  them.  And  how  can  they 
inteUigently  go  along  with  the  shiftings  of  a  volu- 
minous evidence,  often  paralleling  the  play  of  a 
turning  kaleidoscope,  without  some  general  notion 
given  them  beforehand  of  this  evidence,  in  addition 
to  the  statement  of  the  issue  or  issues  to  be  tried, 
which  cannot  be  made  too  distinct  Even  veteran 
judges  will  often  be  found  not  to  have  grasped  the 
question,  arguing  until  midway  the  argument.  And 
if  they  who  are  trained  to  listen,  and  whose  appre- 
hensions have  been  artificially  quickened,  need  a 
prefatoiy  outline,  much  more  do  the  laity  in  the 
jury-box  need  a  patient  and  careful  introduction  to 
the  general  features  of  the  case  before  the  evidence 
begins.  Time  and  again  have  I  heard  the  counsel 
for  the  plaintiff,  after  reading  rapidly,  and  seerning 
not  to  care  whether  he  is  understood  or  not,  the  sub- 
stantial parts  of  the  pleadings,  only  remind  the  jury 
that  he  expects  to  support  the  allegations  of  the 
declaration  by  evidence,  which  he  will  not  take  up 
their  time  now  to  describe.  One  of  the  hardest  things 
to  do  in  the  world,  is  to  make  men  attend  to  details 
as  they  should.  The  reviewer  often  omits  notice  of 
.the  most  important  features  of  a  book  ;  the  historian, 
intent  only  upon  some  distorting  theory,  writes 
what  it   is    good-nature  in    the    extreme   to    call  a 


228  CONDUCT    OF    LITIGATION. 

lialf-glimpse  of  the  society  whose  life  he  is  telhug  ; 
the  pubHc  disputant  and  the  counsel  are  perpetuall)/ 
discomfited  because  of  inattention  to  some  detail  of 
their  subject.  Note  how  seldom  a  witness  testifying, 
however  honest  and  free  from  bias,  can  answer  fully 
as  to  the  transaction.  Had  the  reviewer  had  in  mind 
the  different  features  of  the  book,  had  the  historian 
been  taught  the  elements  of  the  life  of  any  and  all 
society,  had  the  speaker  been  fully  informed  of  his 
subject,  and  the  witness  been  instructed  what  to 
look  at  before  the  transaction  which  he  narrates 
begun,  each  one  would  have  been  m.ore  accurate 
The  counsel  opening  the  pleadings  and  the  case 
must  recollect  this.  Let  him  even  when  he  reads 
to  the  judge,  premise  by  giving  a  brief  and  succinct 
epitome  of  the  points  to  which  he  will  read. 

All  the  logics  say  that  discussion  must  begin 
with  a  definition  of  the  terms  of  the  proposition. 
This  is  the  rule  which  prescribes  the  duties  of  coun- 
sel opening  the  pleadings.  And  in  opening  the 
evidence,  he  is  to  possess  the  jury  with  it  in  minia- 
ture, as  it  were.  The  art  of  presenting  facts  in- 
telligibly is  to  avoid  crowding  them  together.  If  I 
ran  on  in  a  jumble  :  "John  Doe,  a  laborer,  of  Suffolk 
County,  born  July  4th,  1826,  died  July  15th,  1873, 
leaving  a  widow,  etc.,"  scarcely  any  one  can  repeat 
it  after  me,  for  he  needs  more  time  to  contemplate  by 


OPENING.  229 

and  receive  each  fact  asserted.  To  carry  my  hearer 
along  with  me,  I  should  proceed  somewhat  as 
follows  :  "  John  Doe  was  a  laborer ;  he  resided  in 
Suffolk  County;  he  was  born  July  4th,  1826;  he 
died  July  15th,  1873  ;  he  left  a  widow,  &c."  The 
hearer  of  ordinary  intelligence  will  pick  it  all  up, 
and  be  able  to  give  it  substantially. 

To  sum  up  the  essentials  of  an  opening,  as  we 
term  it  in  America,  in  a  few  words,  it  must  make 
the  court  and  jury,  as  briefly  as  possible,  understand 
the.  case  so  that  they  may  try  it  intelligently,  and  it 
must  also  present  an  outline  of  the  plaintiff's  case 
so  that  his  evidence  may  be  readily  understood  as  it 
is  introduced 

It  is  likewise  our  custom,  when  the  defendant 
introduces  evidence,  that  he  also  open  his  defense. 
The  pleadings  having  been  already  opened,  he  has 
nothing  to  do  with  them.  He  will  present  an  out- 
line of  his  defense  and  evidence,  guided  by  the 
principles  which  we  have  already  set  forth.  The 
defendant's  counsel  in  England,  at  this  time,  dis- 
cusses the  plaintiff's  evidence,  as  he  will -be  heard 
no  more.  But  as  we  have  already  said,  in  America 
we  argue  the  evidence  after  we  have  heard  all  of  it. 

There  is  also  an  opening  of  the  record  when 
the  question  is  entirely  for  the  court.  The  sam.e 
rules  govern  it.     An  oral  synopsis  of  the  points  to 


230  CONDUCT    OF    LITIGATION. 

which  the  record  will  be  read,  and  an  oral  statement 
of  the  case  made  by  the  record,  shordd  precede  the 
reading  of  the  record. 

As  we  leave  this  chapter,  we  urge  that  unfair- 
ness and  over-statement  are  more  out  of  place  in  an 
opening  than  anywhere  else.  A  lawyer  should 
always  strive  to  state  his  own  case,  and  that  of  his 
adversary,  with  fairness.  He  will  hardly  ever 
escape  most  damaging  and  irritating  criticism 
should  he  be  so  careless  as  to  be  false  in  opening 
his  case.  Whether  he  opens  pleadings,  or  a  record, 
or  evidence,  he  should  do  so  with  the  strictest  re- 
gard for  the  truth,  adding  nor  taking  away  nothing. 
The  following  passage  of  Brougham's  defense  of 
his  illustrious  client  must  have  told  fearfully  upon 
Gifford,  the  Attorney-General,  who  had  in  his 
opening  stated  the  evidence  of  adultery,  which  he 
professed  to  have  against  the  Queen,  much  too 
strongly  : 

"  He  meant  to  point  out  the  parts  of  his  learned 
friend,  the  Attorney-General's,  opening  statement, 
which  instead  of  receiving  support  from  the  evi- 
dence, were  either  not  touched  upon  by  it  at  all,  or 
actually  negatived  out  of  the  mouths  of  his  own 
witnesses.  His  learned  friend  should  speak  in  his 
own  words  the  statement  of  the  plan  and  construc- 
tion of  his  own  case.      It  was  most  material,  also. 


OPENING.  231 

for  them  to  bear  in  mind  that  his  learned  friend  was 
in  his  statement  directed  by  the  instructions  which 
were  put  into  his  hands  ;  for  this  speech  ought  01 
course  to  be  considered  as  the  mere  transcript  or 
his  instructions,  the  mere  outline  of  the  documents 
submitted  to  him  ;  documents  prepared,  too,  in  a 
way  which  nobody  need  be  at  any  loss  to  guess. 

"  His  learned  friend,  nearly  in  his  commence- 
ment, used  these  words :  '  I  will  most  conscien- 
tiously take  care  to  state  nothing  which  in  my 
conscience  I  do  not  think — I  do  not  believe — 
I  shall  be  able  to  substantiate  by  proof.'  He  need 
not  have  so  strongly  appealed  to  his  conscience, 
for  he  (Mr.  Brougham)  fully  believed  him  when 
he  said  he  spoke  from  his  instructions ;  he 
readily  believed  that  he  spoke  from  his  brief,  and 
said  nothing  else  but  what  he  found  in  his  brief. 
He  believed  that  at  the  time  his  learned  friend 
made  his  opening  statement ;  he  equally  believed 
it  now,  when  he  had  failed  in  substantiating  that 
statement  by  proof.  He  knew  full  well  that  there 
was  no  other  way  for  that  statement  to  have  got 
into  his  learned  friend's  brief,  but  out  of  the  mouths 
of  the  witnesses  who  at  first  had  not  hesitated  to 
garnish  their  stories,  though  they  were  not  after- 
wards found  hardy  enough  to  adhere  to  their  false- 
hoods when  brought  to  their  lordships'  bar.      When 


232  CONDUCT     OF    LITIGATION. 

they  came  to  the  point,  they  were  scared  from  their 
first  statements. 

"He  would  read  a  few  samples  of  the  difference 
between  the  Attorney-General's  statement  and  his 
subsequent  evidence,  for  the  purpose  of  showing  the 
value  at  which  their  lordships  ought  to  estimate 
that  evidence.  In  the  first,  his  learned  friend  had 
pledged  himself  that  the  evidence  of  her  Majesty's 
alleged  impropriety  of  conduct  would  be  brought 
down  almost  to  the  present  time ;  but  subsequently 
he  did  not  attempt  so  to  bring  it  down  during  any 
part  of  the  last  three  years ;  that  is  to  say,  during  a 
space  of  time  exactly  equal  to  the  other  space  over 
which  his  evidence  actually  adduced  extended. 

"  Here  he  begged  leave  to  revert  to  the  follow- 
ing passages  of  the  Attorney-General's  opening 
statement,  which  he  took  from  the  short-hand 
vvriter's  notes  : 

'"On  the  arrival  of  her  Majesty's  suite  at 
Naples,  it  was  so  arranged  that  her  Majesty's 
sleeping-room  was  at  an  opposite  side  of  the  house 
to  that  of  her  menial  domestics,  among  whom  was 
her  courier.  On  the  first  night  of  her  Majesty's 
arrival  at  Naples  (the  8th  of  November),  to  which 
he  had  called  their  lordships'  attention,  this  arrange 
ment  was  continued.  Bergami  slept  in  that  part  of 
the  house  which  had  been  prepared  for  the  domes 


OPENING.  233 

tics,  and  young  Austin  slept  in  her  Majesty's 
apartment.  But  on  the  following  morning,  Nov- 
ember the  9th,  the  servants  of  the  establishment 
learned  with  some  surprise,  because  no  reason  ap- 
peared to  them  for  the  change,  that  Bergami  was  no 
longer  to  sleep  in  that  part  of  the  house  where  he 
had  slept  the  night  precedmg,  but  that  it  was  her 
Majesty's  pleasure  that  he  should  sleep  in  a  room 
from  which  there  was  a  free  communication  with 
that  of  her  Majesty  by  means  of  a  corridor  or  passage. 
"'Upon  the  evening  of  the  9th  of  November, 
-her  Majesty  went  to  the  opera  at  Naples,  but  it  was 
observed  that  she  returned  home  at  a  very  early 
hour.  The  person  who  waited  upon  her  on  her 
return  was  the  maid-servant,  whose  duty  it  v/as  par- 
ticularly to  attend  to  her  bedroom.' 

" '  The  female  servant  retired  ;  but  not  without 
those  suspicions  which  the  circumstances  he  had 
mentioned  were  calculated  to  excite  in  the  mind  of 
any  individual.  She  knew  at  the  time  that  Bergami 
was  in  his  bedroom,  for  this  was  the  first  night  of 
his  having  taken  advantage  of  the  arrangement 
which  had  been  previously  made.  It  was  quite  new 
on  the  part  of  the  Princess  to  dismiss  her  attendants 
so  abruptly ;  and  when  her  conduct  and  demeanor 
were  considered,  suspicions  arose  which  it  was 
impossible  to  exclude.       But  if  suspicions  were  ex- 


234  CONDUCT    OF    LITIGATION. 

cited  then,  how  were  they  confirmed  on  the  follow- 
ing morning?  If  I  prove  (said  the  Attorney- 
General),  by  evidence  at  your  lordships'  bar,  what  I 
am  now  going  to  state,  I  submit  that  there  will  then 
be  before  your  lordships'  evidence  on  which  no  juiy 
would  hesitate  to  decide  that  adultery  had  that  night 
been  committed  between  this  exalted  person  and  her 
menial  servant ;  for  upon  the  following  morning,  on 
observing  the  state  of  her  room,  it  was  evident  that 
her  Majesty  had  not  slept  in  her  own  bed  that  night. 
Her  bed  remained  in  the  same  state  as  on  the  pre- 
ceding evening,  while  the  bed  of  the  other  person 
had,  to  those  who  saw  it,  clear  and  decisive  marks 
of  two  persons  having  slept  in  it.' 

"  Their  lordships  would  perceive  that  every  one 
of  these  assertions  in  his  learned  friend's  speech 
rose  one  above  the  other  in  successive  height,  accord- 
ing to  their  relative  importance,  and  that  even  the 
lowest  of  them  it  was  of  essential  importance  to  sus- 
tain by  evidence  for  his  case.  But  every  one  of  them 
he  not  only  failed  to  prove  as  he  promised  to  prove 
by  evidence,  but  he  actually  negatived  some  of  the 
most  material  of  them,  by  the  witnesses  whom  he 
had  produced  at  the  bar,  evidently  for  the  purpose 
of  substantiating  them.  When  the  witness  Demont 
was  at  the  bar,  he  repeatedly  asked  her  respecting 
these   parts    of  her   statement ;   but   she,   who   was 


OPENING.  235 

destined  to  tell  them  all,  denied  any  knowledge  of 
where  the  Queen  went  to  on  that  particular  night 
alluded  to.  She  denied  that  she  knew  where  the 
Queen  went  after  she  left  her  bedroom."  ' 

And  the  report  of  the  evidence  sustained  all  of 
these  serious  attacks  made  by  the  counsel  for  the 
Oueen. 

Again  we  must  insist  on  the  superiority  of  the 
American  system,  which  permits  the  counsel  to  talk 
beforehand  with  the  witnesses.  Gifford  might  not 
have  been  caught  in  these  mis-statements  could  he 
have  been  instructed  by  the  witnesses  in  person, 
instead  of  at  second-hand  by  attorneys 

An  opening  may  be  demolished,  and  still  the 
party's  case  made  may  entitle  him  to  the  verdict. 
But  generally  to  disprove  or  contradict,  or  have  the 
adversary  to  fail  to  prove  the  case  as  opened,  assures 
your  victory. 

Let  the  counsel,  then,  opening  either  for  the 
plaintiff  or  defendant,  be  ever  scrupulous  to  state 
nothing  but  that  which  he  knows  he  can  make  good 
when  challenged. 

*  Trial   of  Queen   Caroline   (2    vol.  9-12).      New   York, 
1874. 


CONDUCT    OF    LITIGATION. 


CHAPTER     III. 

BEGINNING    OF     CONDUCT     OF     THE     EVIDENCE.         THE 
EXAMINATION-IN-CHIEF. 

We  shall,  as  our  title  indicates,  discuss  in.  this 
chapter,  first  some  of  the  leading  principles  of  the 
proper  conduct  of  the  evidence.  Then  we  shall  treat 
fully  of  the  examination-in-chief  of  the  witnesses. 

We  will  begin  with  the  familiar  rale,  that  the  party 
who  holds  the  affirmative  of  the  issue,  commences 
and  introduces  all  of  his  evidence  which  he  has 
decided  to  introduce  in  making  out  his  case.  It  will 
be  recollected,  that  he  is  only  to  make  out  "A.  p7nrna 
facie  case,  and  that  he  can  reserve  much  of  his  evi- 
dence to  reply  to  the  case  afterwards  made  by  the 
adversary.  Oftentimes  he  can  rest  his  case  safely 
after  having  put  in  but  a  tithe  of  his  evidence,  and 
the  remainder  will  more  properly  come  when  the 
defendant's  evidence  has  been  heard.  But  if  the 
cross-examination  has  proved  much  to  support  the 
defense,  or  has  damaged  the  case  of  the  plaintiff,  it 
^vill  often  be  necessary  to  go  further  than  was  at  first 
intended.      It  is  not  hard,  however,  for  a  lawyer  to 


EXAMINA  TION-IN-CHIEF.  237 

know  when  he  should  close  the  evidence  for  the 
plaintiff.  When  he  sees  that  the  proof,  just  as  it 
stands,  having  due  regard  to  everything  in  evidence, 
entitles  him  to  the  verdict,  he  should  stop. 

Then  the  evidence  for  the  defense  begins,  and 
the  same  rule  applies.  The  defendant  is  to  stop 
when  he  has  put  in  enough  of  evidence  in  his  judg- 
ment to  avoid  or  disprove  the  plaintiff's  case 
Then  he  will  close. 

The  plahitiff  can  then  in  turn  support  by  evi- 
dence his  own  case  where  attacked,  and  attack  the 
attacking  evidence  by  other  evidence,  and  he  will 
close  aofain,  when  he  thinks  he  has  re-established  his 
case.  He  can  here  prove  nothing  additional  to  his 
first  evidence  save  as  I  have  indicated ;  he  can  only 
fend  off,  as  it  were,  the  attacks  made  by  the  evidence 
of  the  adversary,  and  attack,  the  proof  introduced  by 
the  latter.  When  the  plaintiff  has  rested  the  second 
time,  the  defendant  can  likewise  support  his  case 
against  the  attack,  and  disprove  the  new  adverse 
evidence.  And  so  the  parties  can  with  their  evi- 
dence run  a  parallel  to  the  old  course  of  pleading, 
to  vv^it,  declaration,  plea,  replication,  rejoinder,  surre- 
joinder, rebutter,  and  surrebuttal.  The  plaintiff's 
tirst  evidence  answers  to  the  declaration;  the  defen- 
dant's first  to  the  plea  ;  the  plaintiff's  second  evidence 
to  the   replication ;    the  defendant's  second    to    the 


238  CONDUCT    OF    LITIGATION. 

rejoinder;  the  plaintiff's  third  to  the  surrejoinder; 
the  defendant's  third  to  the  rebutter;  and  the  plain- 
tiff's fourth  to  the  surrebutter.  A  learned  author 
says :  "  After  the  surrebutter,  the  pleadings  have  no 
distinctive  names  ;  for  beyond  that  stage  they  are 
vei7  seldom  found  to  extend."  ' 

This  evidence  embraces  documentary  as  well  as 
oril.  It  may  take  a  wide  range.  The  evidence 
sometimes  will  be  all  documentaiy,  though  this  will 
occur  only  now  and  then. 

But  it  is  mainly  our  object,  as  that  is  by  far  the 
greater  portion  of  the  subject  of  evidence,  con- 
sidered as  a  part  of  the  trial,  to  discuss  in  this  and 
the  chapters  immediately  following,  the  examination 
of  witnesses.  We  shall,  however,  at  the  conclusion 
of  Chapter  VI.  treat  of  some  other  matters  apper- 
taining to  the  proper  conduct  of  the  evidence  on 
the  trial. 

We  shall  discuss  the  examination  of  the  witnesses 
under  three  heads  in  these  chapters,  to  wit,  the 
examination-in-chief  (which  is  often  called  the  direct 
examination),  then  the  cross-examination,  and  lastly, 
the  re-examination. 

In  what  we  have  to  say  of  the  examination  of  the 
witnesses,  we  shall  make  much  use  of  the  "  Golden 
Rules"  of  David  Paul  Brown,  and  that  part  of  Mr, 
'  Steph.  PI.  59. 


EXAM  IN  A  TIOX-IX-CHIEF.  239 

Cox's  "  Advocate  "  devoted  to  our  subject.  After 
some  reflection,  we  have  decided  it  due  to  the  impor- 
tance of  these  well-known  authorities,  to  discuss  each 
of  them  separately.  Our  foot-notes  will  enable  the 
reader  to  compare  one  with  the  other  upon  any  par- 
ticular of  which  both  of  them  treat.  It  chances,  how- 
ever, that  they  but  seldom  travel  over  the  same  road. 

David  Paul  Brown  in  one  of  his  "Golden 
Rules,"  advises  that  counsel  never  ask  a  question 
without  an  object,  nor  without  being  able  to  con- 
nect that  object  with  the  case,  if  objected  to  as 
irrelative ;  and  in  another  he  says,  "  Never  begin 
before  you  are  ready,  and  always  finish  when  you 
have  done.  In  other  words,  do  not  question  for 
question's  sake,  but  for  an  answer."  These  rules  are 
applicable  to  all  examinations.  There  should  be  an 
intelligent  purpose  in  asking  every  question,  whether 
you  are  examining  your  own  witnesses  or  crossing 
those  of  your  adversary. 

We  will  take  up  the  examination-in-chief,  by 
citing  a  passage  from  our  English  guide,  which  will 
be  interesting  to  an  American  : 

"  The  plaintiff's  case  being  thus  stated  by  the 
leader,  the  examination  of  the  plaintiff"'s  witnesses 
proceeds.  The  general  rule  is  for  the  counsel  on 
that  side  to  conduct  the  examination  of  the  wit- 
^Tesses   in  turn,   the  junior  taking  the  first  witness, 


240  CONDUCT    OF    LITIGATION. 

probably  because  it  was  supposed  that  the  leader 
would  reqmre  rest  after  his  speech.  But  this  order 
is  somewhat  departed  from  under  special  circum- 
stances,— as  where  the  witness  is  peculiarly 
important,  or  his  examination  demands  peculiar 
skill, — in  which  the  leader  will  propose  to  take  him, 
a  suggestion  to  which  you  should  always  readily  and 
cheerfully  assent ;  and,  indeed,  when  such  a  witness 
chances  to  fall  to  your  lot,  it  would  be  becoming  in 
you  to  propose  to  your  leader  that  he  should  call 
him,  and  thus  to  anticipate  the  delicacy  that  often 
prevents  a  leader  from  doing  that  which  may  look 
like  a  want  of  confidence  in  you."  ' 

The  author  is  not  aware  of  any  Amicrican  rule 
which  settles  what  counsel  shall  examine  the  wit- 
nesses. This  one  of  the  discretionary  matters  which 
is  generally  disposed  of  by  agreement  at  the  consul- 
tation before  the  trial.  If  it  has  not  thus  been 
settled,  the  counsel  whose  leadership  in  the  case  is 
conceded,  either  examines  or  directs  an  associate  to 
do  so.  Other  things  being  equal,  that  counsel 
should  examine  who  is  best  acquainted  with  the 
expected  proof  of  the  particular  witness,  if  that 
proof  be  at  all  difficult  to  elicit.  Generally  in  our 
country,  different  parts  of  the  case  have  been  got  up 
by  different  counsel,  and  possibly  one  of  them  has 
'  Cox,  Adv.  351. 


EX  A  iMINA  riON-  IN-CHIEF.  241 

had  an  inten^iew  with  a  particular  witness,  whom  the 
others  have  had  no  oppprtunity  of  seeing  before. 
It  is  plain,  then,  that  this  counsel,  if  he  has  the  ordi- 
nary qualifications,  should  examine  the  witness 
whose  narrative  he  knows  better  than  his  associates. 

And  the  author  has  noted,  that  where  the  facts 
are  many  and  intricate,  and  the  case  so  doubtfu  1  as 
to  require  careful  and  elaborate  argument,  that  it  is 
better  for  that  counsel  who  is  to  make  the  main 
argument  not  to  examine  any  of  the  witnesses.  He 
can  then  be  free  to  take  careful  notes,  and  at  every 
interval  he  can  be,  as  it  were,  casting  the  balance  of 
the  testimony,  instead  of  puzzling  in  anticipation 
over  the  next  witness,  or  the  cross,  or  the  re-exam- 
ination. And,  while  thus  playing  the  part  of  auditor 
only,  he  will  be  of  great  assistance  to  his  associate 
examining,  to  whom  he  should  make  only  sugges- 
tions of  important  questions  that  he  sees  would 
otherwise  be  omitted. 

But  to  proceed  with  the  examination-in-chief. 
The  pleadings  of  the  plaintiff  which  have  not  been 
demurred  to,  his  declaration  or  his  bill  in  equity,  or 
the  bill  of  indictment,  contain  material  allegations 
which  must  be  proved  ;  and  the  object  of  the  direct 
examination  of  the  plaintiff's  witnes-^cs  is  to  prove 
such  allegations  ;  just  as  it  is  also  the  object  of  the 
defendant's  direct  examination  to  prove  the  allega- 


242  CONDUCT    OF    LITIGATION. 

tions  of  his  plea  or  answer.  We  take  for  granted 
that  our  examiner  is  lawyer  enough  to  know  what  is 
good  evidence,  and  what  is  not.  The  books  wil] 
teach  him  as  to  competency  of  witnesses,  and  com- 
petent and  relevant  evidence.  And  it  is  not  our 
desio-n  to  o;ive  herein  a  treatise  on  the  law  of  evi- 
dence ;  we  turn  our  readers  over  to  Phillips  and 
Greenleaf. 

The  examiner  understanding  the  law  of  evidence, 
and  having  fully  learned  the  narrative  of.  the  witness, 
either  from  having  conversed  with  him  in  person,  or 
from  having  digested  full  instructions  of  a  reliable 
associate,  v^rill  so  shape  his  questions  as  to  elicit 
from  the  witness  the  material  portions  of  that 
narrative.  And  he  is  to  get  out  of  the  witness 
every  bit  of  material  testimony  favorable  to  the 
plaintiff,  and,  if  avoidable,  nothing  unfavorable.  He 
must  prove  enough,  and  not  too  much 

But  if  there  is  something  adverse  apparent  on 
the  surface,  the  examiner-in-chief  had  better  prove  it 
him.self  by  the  witness.  Thus  the  witness  may  be  a 
near  relation  of  the  party,  or  a  warm  friend,  or  some 
\m favorable  part  of  his  narrative  may  be  well  known 
to  the  other  <5ide.  It  is  idle  to  tiy  to  keep  back 
these  things,  and  the  party  calling  the  witness  will 
gain  credit  with  the  jury  by  proving  them,  and  it 
might  be  used  to  his  disadvantage  if  he  did  not. 


EX  AM/N  A  TION-IN-CHIEF.  243 

The  examiner  can  do  his  duty  well  only  by 
having  by  heart  the  narrative  of  the  witness.  And 
the  reader  will  also  understand  that  this  applies  to 
the  e.xamination  by  the  defendant  of  his  own  wit- 
nesses. 

Having  now  laid  down  what  we  deem  the 
essential  principles  of  an  examination-in-chief,  we 
will  give  some  hints  and  suggestions  which  we 
think  useful.  And  here  we  will  draw  largely  on 
David  Paul  Brown's  "  Golden  Rules,"'  and  "  The 
Advocate "  of  Mr.  Cox.  And  we  will  begin  by 
copying  the  First  Golden  Rule  : 

"  As  to  your  own  witnesses  :  If  they  are  bold, 
and  may  injure  your  cause  by  pertness  or  forward- 
ness, observe  a  gravity  and  ceremony  of  manner 
towards  them,  which  may  be  calculated  to  repress 
their  assurance." 

This  rule  is  valuable,  and  deserves  meditation. 
I  will,  however,  suggest  that  it  is  the  business  of 
counsel  to  know  beforehand  whether  a  witness  will 
be  bold,  or  pert,  or  fonvard,  and  caution  him  against 
such  behavior  No  gentleman  of  the  bar  will  ever 
tell  a  witness  to  say  anything  but  the  truth  ;  but  he 
will  be  remiss  in  his  duty,  if  he  find  him  :'n  the  con- 
sultation-room hasty  and  forwarJ,  not  to  reprove 
and  rebuke  him  into  a  more  b:c3ming  spirit,  and 
'   I  Forum  Ixxiv. 


344  CONDUCT    OF    LITIGATION. 

thus  rightly  prepare  him  for  the  witness-box.  But 
if  this  duty  has  been  omitted,  the  caution  of  David 
Paul  Brown  is  to  he  acted  out  to  the  fullest.  He 
proceeds  : 

''Second. — If  they  are  alarmed  or  diffident,  and 
their  thoughts  are  evidently  scattered,  commence 
your  examination  with  matters  of  a  familiar  char- 
acter, remotely  connected  with  the  subject  of  their 
alarm,  or  the  matter  in  issue,  as,  for  instance : 
Where  do  you  live  ?  Do  you  know  the  parties  ? 
Hovv^  long  have  you  known  them  ?  &c.  And  when 
you  have  restored  them  to  composure,  and  the  mind 
has  regained  its  equilibrium,  proceed  to  the  more 
essential  featuies  of  the  case,  being  careful  to  be  mild 
and  distinct  in  youi  approaches,  lest  you  may  trouble 
the  fountain  again  fiom  which  you  are  to  drink." 

Upon  this  rule  we  remark  that  it  is  also  the 
business  of  the  lawyei  lo  anticipate  the  fright  or 
discomposure  of  his  witness.  If  he  will  but  talk 
to  him  before  the  trial,  he  will  see  whether  he 
promises  to  be  composed  or  not.  Women  and 
diffident  men  will  pour  Odt  their  fears  of  the  court- 
room to  you  volubly,  if  you  Vv  JU  but  listen ;  and 
listen  you  should,  to  be  prepared  for  their  examina- 
tion, or  to  prepare  youi  associate.  If  you  will  take 
their  confidence,  you  will  find  the  witnesses  leaning 
on  you   as   a  protector,  and  better  furnished   there* 


EXA  MINA  TION-IN-  CHIEF.  245 

from  for  the  day  of  trial.  But  often,  in  spite  of  the 
best  anticipation,  the  witness  will  be  discomposed 
when  he  is  called,  and  if  so,  the  advice  of  the  cited 
rule  is  admirable,  and  nothing  can  be  added  to  it. 

*'  Third. — If  the  evidence  of  your  own  witnesses 
be  unfavorable  to  you  (which  should  always  be 
carefully  guarded  against),  exhibit  no  want  of  com- 
posure ;  for  there  are  many  minds  that  form 
opinions  of  the  nature  or  character  of  testimony 
chiefly  from  the  effect  which  it  may  appear  to  pro- 
duce upon  the  counsel." 

We  have  already  touched  upon  the  subject  of 
unfavorable  testimony  from  your  own  witnesses.  A 
prudent  consultation  with  the  witness  should  guard 
against  surprise.  But  if,  in  spite  of  such  forearming, 
something  unfavorable  unexpectedl}-  comes  out,  th*" 
rule  advises  well. 

"  Fourth. — If  you  perceive  that  ihe  mind  of  the 
witness  is  involved  with  prejudices  against  your 
client,  hope  but  little  from  such  a  quarter :  unless 
there  be  some  facts  which  are  essential  to  your 
client's  protection,  and  which  that  witness  alone 
can  prove,  either  do  not  call  him,  or  get  rid  of  him 
as  soon  as  possible.  If  the  opposite  counsel  per- 
ceive the  bias  to  which  I  have  referred,  he  may 
employ  it  to  your  own  ruin.  In  judicial  in^uiriei:, 
of  all  possible  evils,  the  worst  and  the  least  to  be 


246  CONDUCT    OF    LITIGATION. 

resisted  is  an  enemy  in  the  disguise  of  a  friend. 
You  cannot  impeach  him — you  cannot  cross- 
examine  him — ^you  cannot  disarm  him — you  cannot 
indirectly  even  assail  him  ;  and  if  you  exercise  the 
only  privilege  that  is  left  to  you,  and  call  other 
witnesses  for  the  purpose  of  explanation,  you  must 
bear  in  mind  that  instead  of  carrying  the  war  into 
the  enemy's  country,  the  struggle  is  between  sec- 
tions of  your  own  forces,  and  in  the  very  heart, 
perhaps,  of  your  own  camp.  Avoid  this  by  all 
means." 

This  rule  seems  to  assume  that  a  witness  often 
eludes  the  watchfulness  of  party,  friends,  and  lawyers, 
proving  at  last,  when  put  on  the  stand,  to  have  been 
but  a  spy  under  the  character  of  a  friend.  Prudent 
preparation  will  guard  well  against  any  such  catas- 
trophe. Every  witness  of  doubtful  character,  should 
be  committed  to  his  narrative  in  the  presence  of 
those  who  would  quickly  bear  him  down  should  he 
swerve.  The  party  is  not  at  the  mercy  of  a  traitorous 
witness.  The  true  rule  is  by  careful  preparation  to 
avoid  or  unarm  him  as  much  as  possible; but  if  you 
are  surprised,  impeach  him  if  you  can  by  proof  of 
his  contradictory  statement  to  your  client,  or  if  you 
can  not,  a  straightforward  and  manly  grappling  with 
the  traitor,  will  turn  the  sympathy  powerfully 
against  him.     The  law  and  courts  are  becoming  too 


EX  A  MINA  TION-  IN-  CHIEF.  247 

wise  to  permit  justice  to  be  cheated  under  irrational 
rules.  Tlie  most  busy  and  eminent  counsel,  can  at 
least  at  the  consultation  the  night  before  the  trial, 
carefully  probe  and  search  among  his  client's  follow- 
ing for  the  character  of  all  the  witnesses,  and  thus 
be  prepared  against  any  lurking  partisan  of  the 
adversary. 

The  next  rule  is  unexceptionable  : 

''Fifth. — Never  call  a  witness  whom  your  adver- 
sary will  be  compelled  to  call.  This  will  afford  you 
the  privilege  of  cross-examination,  take  from  your 
opponent  the  same  privilege  it  thus  gives  you,  and 
in  addition  thereto  not  only  render  everything 
unfavorable  said  by  the  witness  doubly  operative 
against  the  party  calling  him,  but  also  deprive  that 
party  of  the  power  of  counteracting  the  effect  of  the 
testimony." 

The  seventh  and  eighth  rules  are  likewise  unex- 
ceptionable, and  are  given  entire  : 

"  Seventh. — Be  careful  not  to  put  your  questions 
in  such  a  shape  that  if  opposed  for  informality  you 
can  not  sustain  it,  or  at  all  events  produce  strong 
reason  in  its  support.  Frequent  failures  in  the 
discussion  of  points  of  evidence  enfeeble  your 
strength  in  the  estimation  of  the  jury,  and  greatly 
impair  your  hopes  in  the  final  result." 

"  Eighth. — Never  object  to  a  question  from  your 


248  CONDUCT    OF    LITIGATION. 

adversary  without  being  able  and  disposed  to 
enforce  the  objection.  Nothing  is  so  monstrous  as 
to  be  constantly  making  and  withdrawing  objec- 
tions ;  it  either  indicates  a  want  of  correct  perception 
in  making  them,  or  a  deficiency  of  reason  or  of 
moral  courage  in  not  making  them  good." 
And  there  is  good  sense  in  the  following  : 

''Ninth. — Speak  to  your  witness  clearly  and 
distinctly,  as  if  you  were  awake  and  engaged  in  a 
matter  of  interest ;  and  make  him  also  speak  dis- 
tinctly and  to  your  question.  How  can  it  be 
supposed  that  the  court  and  jury  will  be  inclined  to 
listen,  when  the  only  struggle  seems  to  be,  whether 
the  counsel  or  the  witness  shall  first  go  to  sleep  }  " 

We  will  now  present,  following  the  order  ol 
the  author,  all  the  suggestions  that  we  deem  of  value 
in  Mr.  Cox's  chapter  on  Examination-in-chief ' 

His  advice  as  to  leading  questions,  need  not  be 
repeated.  It  now  seems  to  be  the  tendency  to 
permit  such  questions,  unless  the  court  interferes  to 
])revent  abuse.  The  counsel  is  generally  doing  but 
little  if  he  is  only  on  the  watch  to  object  to  leading 
questions : 

Upon  the  next  point  we  will  give  some  of  Mr. 
Cox's  language : 

"  Great  caution  is  required  in  the  examination  of 
'  Adv.  351,  et  seq. 


EXAMINA  TION-IN-CHIEF.  249 

all  your  witnesses  after  the  first,  to  prevent  their  dis- 
agreement in  any  important  particulars.  No  error 
of  inexperience  or  unskillfulness  is  more  common, 
than  to  examine  a  witness  according  to  the  briefs 
without  reference  to  the  evidence  previously  given, 
and  the  requirements  of  the  case  as  it  stands.  If 
you  fear  that  there  may  be  conflicting  testimony  on 
any  point,  the  first  witness  having  varied  from  the 
statement  made  in  the  brief,  it  is  usually  better  to 
leave  it  as  it  stands  upon  that  single  testimony,  than 
to  bring  out  a  contradiction  ;  but  upon  this  you 
must  exercise  your  sagacity  at  the  rnoment  ;  it  must 
depend  upon  the  particular  facts  of  the  case.  We 
only  suggest  to  you  that  it  is  one  of  the  difficulties 
of  examination-in-chief,  which  you  should  be  pre- 
pared to  encounter.  Anticipating  it,  you  will  not 
be  taken  by  surprise  when  it  occurs  to  you  in  your 
practice."  ' 

This  passage  shows  the  incurable  evil  of  the 
English  division  of  counsel  and  attorney.  The  latter 
is  of  inferior  grade  and  ability,  and  he  must  consult 
with  the  witnesses,  and  his  often  incorrect  and 
mistaken  apprehension  is  imposed  upon  the  counsel, 
who,  in  a  few  minutes'  talk  with  the  witness,  would 
correct  it,  and  thus  perhaps  steer  his  client's  c?use 
around  the  breakers.  Let  the  American  lav  ^  or 
'  Compare  with  tlie  4th  Golden  Rule,  ante. 


250  CONDUCT    OF    LiriGATION. 

avoid  this  evil,  and  always  talk  with  his  witnesses 
and  come  to  the  trial  fully  informed,  as  wc  have 
before  instructed  him.  And  it  is  his  duty  to  find 
out  beforehand  the  material  conflicts  between  his 
own  witnesses. 

The  reader  will  recollect  the  instance  that  we 
gave  in  Chap.  V.  of  Book  I.,  where  the  caveator 
introduced  the  testimony  of  two  women,  who, 
though  agreeing  as  to  the  main  issue  of  fact,  yet 
contradicted  each  other  in  so  many  different  par- 
ticulars of  importance,  as  to  cast  discredit  upon 
both.  We  said  that  it  was  a  blunder  in  the  prepa- 
ration that  the  conflicts  between  them  had  not  been 
discovered  by  a  careful  sifting,  and  that  then  only 
the  disinterested  one  should  have  been  examined 
by  commission.  Another  blunder  was  committed 
on  the  trial.  The  caveator  put  in  evidence  the 
testimony  of  both  the  witnesses.  This  he  was  not 
obliged  to  do,  although  the  testimony  had  been 
taken  at  his  instance.  He  could  have  relied 
upon  the  evidence  of  that  one  of  the  women  who 
had  no  apparent  interest,  and  then  had  the  pro- 
pounders  put  in  that  of  the  other,  they  would  have 
been  held  to  the  rule  that  they  could  not  discredit 
their  own  witness.  And  had  the  propounders  left 
the  testimony  of  this  disinterested  woman  unat- 
tacked. — and  they  had  no  means  of  attacking  it  save 


EX  A  MINA  T ION -IN-  CHIEF.  ^  5 1 

by  that  of  the  other,— it  is  difficult  to  see  how  they 
could  have  avoided  an  adverse  verdict.  The 
caveator  seemed  to  believe  that  as  he  had  taken  the 
testimony  of  both  of  the  women,  he  must  use  all 
of  it.  And  thus  he  not  only  prepared  adverse  evi- 
dence, but  he  actually  introduced  it  when  there  was 
no  need,  and  broke  down  his  own  case. 

Mr.  Cox  next  advises  the  counsel  to  be  on  his 
guard  against  "  two  kinds  of  troublesome  witnesses, 
.  .  .  those  who  say  too  much,  and  those  who  say 
too  little  ;  your  too  eager  friends,  and  your  secret 
enemies."  I  have  only  to  say  that  it  is  the  duty  of 
the  lawyer  to  discover  these  characters,  and  be  pro- 
vided for  them  before  the  trial. 

"  Our  authority  recommends  a  different  treatment 
of  a  party's  adverse  witness  from  that  advised  in  the 
Fourth  "  Golden  Rule,"  given  above.  If  the  hostil- 
ity must  out,  the  witness  is  to  be  made  to  show  it 
plainly.  "  If  he  be  adverse  at  all,  you  can  7iot  make 
Jmn  appear  too  adverse,  because  the  more  hostile  he 
is,  the  more  will  his  evidence  in  your  favor  be 
esteemed,  and  the  less  weight  will  be  given  to  such 
evidence  as  he  may  utter  against  you."  This  advice 
should  often  be  remembered. 

Mr.  Cox  then  deals  admirably  with  timid  and 
stupid  witnesses.     We  will  give  his  language  : 

"If  your  witness  be  timid,  it  will   be  your  care 


■^\i  CONDUCT    OF    LITIGATION. 

to  restore  his  self-possession  before  you  take  him  to 
the  material  part  of  his  testimony.  This  you  should 
effect  by  assuming  a  cheerful  and  friendly  manner 
and  tone,  and  if  you  have  the  art  to  make  him 
smile,  your  wit  would  be  better  timed  than  is  always 
the  case  with  forensic  jests.  Keep  him  thus  em- 
ployed upon  the  fringe  of  the  case  until  you  are 
satisfied  that  his  courage  is  restored,  and  then  you 
may  proceed  with  him  as  with  any  other  witness. 
But  be  very  careful  not  to  take  him  to  material 
topics  vv^hile  he  is  under  the  influence  of  fear,  for  in 
this  state  a  witness  is  apt  to  become  confused,  and 
to  contradict  himself,  and  so  to  afford  to  your  ad- 
versary a  theme  for  damaging  comment.* 

"  A  stupid  witness  is  often  more  troublesome 
than  an  adverse  one.  He  can  not  understand  your 
questions,  or  answers  them  so  imperfectly  that  he 
had  better  left  them  unanswered.  With  such  an 
one  the  only  resource  is  patience  and  good-temper. 
If  you  are  cross  Vv^ith  him,  you  will  be  sure  to  In- 
crease his  stupidity,  and  to  convert  evidence  that 
means  nothing,  into  evidence  that  is  contradictory 
and  confused.  The  preservation  of  imperturbable 
good-temper  is  a  golden  rule  with  an  advocate. 
He  should  never  be  moved  to  anger  by  anything, 
however  provoking,  and  however  he  may  appear  to 

'  Compare  with  the  Second  "  Goiden  Rule,"  ante. 


EXAMINATION-IN-CHIEF.  253 

be  in  a  passion.  Entire  self-command  is  his  great- 
est virtue,  never  more  in  requisition  than  in  dealing 
with  a  stupid  witness.  Instead  of  rebuking  him, 
you  should  encourage  him  by  a  look  and  expression 
of  approval,  and  you  must  frame  your  question 
in  another  shape  better  suited  to  his  dense  facul- 
ties. If  baffled  again,  do  not  retreat,  but  renew 
the  catechism  until  your  object  is  attained.  In 
constructing  your  questions,  you  will  often  find  a 
clue  to  his  links  of  thought  by  observing  his 
answers,  and  your  next  question  might  then  with  a 
little  ingenuity  be  so  framed  as  to  fall  in  with  his 
train  of  ideas.  Thus  patiently  treated,  there  are 
few  witnesses  so  dull  as  not  to  be  made  efficient  for 
the  purpose  of  an  examination-in-chief." 

I  will  add  that  the  trouble  with  a  stupid  witness 
is  often  prolonged  because  the  examiner  keeps  him- 
self in  a  region  elevated  above  the  comprehension 
of  his  answerer.  He  must  learn  to  lower  to  his  level. 
A  man  that  can  make  children  always  understand 
him,  will  know  how  to  deal  with  a  dunce  of  a 
witness.  I  give  in  a  note  below  an  example  from 
an  eminent  novelist,  illustrating  well  how  a  superior 
mind  may  lock  itself  up  to  an  inferior."     This  is  the 

•  The  passage  is  from  Buhver's  "My  Novel."  Dr.  Ricca- 
bocca  begins  : 

*' '  For   your  sake,  young  gentleman,  I  regret  that   your 


254  CONDUCT    OF    LITIGATION. 

fault  of  the  better  mind.  It  is  easier  for  a  dull  man 
to  understand  his  superior  in  intellect,  provided  the 
latter  only  will  learn    how    to    talk    to    him,   than 

holidays  are  so  early  ;  for  mine  I  must  rejoice,  since  I  accept 
the  kind  invitation  you  have  rendered  doubly  gratifying,  by 
bringing  it  yourself.' 

"  '  Deuce  take  the  fellow  and  his  fine  speeches  !  One  don't 
know  which  way  to  look,'  thought  English  Frank. 

"  The  Italian  smiled  again,  as  if  this  time  he  had  read  the 
boy's  heart  without  need  of  those  piercing  black  eyes,  and 
said  less  ceremouioasly  than  before,  '  You  don't  care  much 
for  compliments,  young  gentleman.' 

"*  No,  I  don't,  indeed,'  said  Frank,  heartily. 

"  '  So  mvich  the  better  for  you,  since  your  way  in  the  world 
is  made;  it  would  be  so  much  the  worse,  if  you  had  to 
make  it.' 

"  Frank  looked  puzzled  :  the  thought  was  too  deep  for  him, 
so  he  turned  to  the  pictures. 

" '  These  are  very  funny,'  said  he  ;  '  they  seem  capitally 
done.     Who  did  'em  .?  ' 

" '  Signorino  Hazeldean,  you  are  giving  me  wdiat  you  re- 
fused yourself 

"  '  Eh  ? '  said  Frank,  inquiringly. 

"  *  Compliments.' 

"  '  Oh — I — no  ;  but  they  are  well  done  ;  aren't  they,  sir  ?  ' 

"  '  Not  particularly  :  you  speak  to  the  artist.' 

"  '  What !  you  painted  them  .? 

"  '  Yes.' 

"  *  And  the  pictures  in  the  hall  1  ' 

"  'Those  too.' 

"  '  Taken  from  nature,  eh  .'' ' 

*-"  Nature,' said  theltilian  sentcntiously,  perhaps  evasively, 
'  lets  nothing  be  taken  from  her.' 

"  '  Oh  !  '  said  Frank  puzzled  again.  *  Well,  I  must  wish 
you  good-morning.'  " 


EX  A  MINA  TION-  IN-  CHIEF.  2  5  5 

to    understand    what    another   as    dull    as    himself 
says. 

Mr.  Cox  advises  that  the  order  of  time  be 
observed  in  the  examination  ;  that  if  this  be  departed 
from,  for  the  sake  of  bringing  out  facts  connected 
by  some  other  link  than  that  of  time,  these  should 
be  presented  in  due  chronological  order,  and  then 
the  original  plan  be  returned  to.  "  But  it  Vx^U  not 
do  to  revert  to  the  precise  point  where  you  quitted 
it ;  you  should  repeat  the  two  or  three  questions  with 
which  you  concluded,  so  as  to  recall  your  witness  to 
the  point  from  which  you  had  diverted  him." 

The  same  author  says  that,  "  Your  questions  in 
examination-in-chief  should  be  framed  carefully  and 
put  deliberately.  .  .  .  You  should  weigh  every 
question  in  your  mind  before  you  put  it,  in  order 
that  it  may  be  so  framed  as  to  bring  out  in  answer 
just  so  much  as  you  desire  and  no  more.  .  .  .  The 
court  will  soon  learn  not  to  be  impatient  of  your 
seeming  slowness,  when  it  discovers  that  you  have 
in  fact  abbreviated  the  work  by  a  pause,  which  has 
enabled  you  to  keep  the  evidence  strictly  to  the 
point  at  issue.  They  who  remember  Sir  William 
Follett,  will  at  once  understand  our  meaning,  for  one 
of  his  most  remarkable  and  impressive  peculiarities 
was  the  grave  and  thoughtful  deliberation  with 
which   he  framed  and  put  his  questions  to  his  own 


25^  CONDUCT    OF    LITIGATION. 

witnesses,  and  the  result  of  which  was,  that  he  was 
seldom  annoyed  by  unexpected  answers  or  by  addi- 
tions and  explanations  which  he  did  not  desire." 

I  highly  commend  these  instructions.  But  few 
things  can  be  done  well  in  a  hurry.  The  court-room 
is  as  exciting  as  the  battle-field,  and  the  genius  for 
each  is  always  at  the  bottom  cool-headed,  whatever 
may  be  its  manifestations.  But  we  will  go  on  with 
our  English  Guide  : 

"  Sometimes  it  demands  considerable  discretion 
to  determine  whether  it  is  better  to  permit  the 
witness  to  tell  his  own  story  in  his  own  way,  or  to 
take  him  through  it  by  questions.  No  rule  can  be 
laid  down  for  this  ;  it  must  depend  upon  your  dis- 
cernment at  the  moment.  There  is  a  class  of  minds 
which  can  only  recall  facts  by  recalling  all  the 
associated  circumstances,  however  irrelevant ;  they 
must  repeat  the  wiiole  of  a  long  dialogue,  and  dis- 
scribe  the  most  trivial  occurrences  of  the  time,  in 
order  to  arrive  at  any  particular  part  of  the  trans- 
action. With  such  you  have  no  help  for  it  but  to 
let  them  have  their  ov/n  way.  It  is  the  result  of  a 
peculiar  mental  constitution,  and  endeavors  to  dis- 
turb his  trains  of  association  will  only  produce  in- 
extricable confusion  in  the  ideas  of  the  witness,  and 
you  will  be  further  than  ever  from  arriving  at  your 
object.     But  if  you  arc  dealing  with  that  other  class 


EXAMINA  TION-IN-CHIEF,  257 

of  witnesses  who  appear  to  have  no  trains  of 
thought  at  all,  who  can  observe  no  order  of  events, 
whose  ideas  are  confused  as  to  time,  pl-ace,  and  per- 
son, your  only  chance  of  extracting  anything  to*, 
your  purpose,  is  to  begin  by  requesting  that  they 
would  simply  answer  your  questions,  and  falling  in, 
as  it  were,  with  their  own  mental  condition, 
proceed  to  interrogate  them  after  their  own  fashion, 
with  disconnected  questions,  and  so  endeavoring  to 
draw  out  of  them  isolated  facts  which  you  will 
afterwards  connect  together  in  your  reply,  or  which 
mavdovetail  with  the  rest  of  the  evidence  so  as  to 
form  a  complete  storv." 

The  above  passage  is  worth  considering.  But 
I  must  remind  the  reader  again  that  the  careful  ex- 
amination of  the  witnesses  by  the  counsel  in  private 
before  the  trial,  will  best  prepare  for  the  court-room. 
You  will  often  do  well  to  have  rehearsals  from 
your  witnesses  preparatoiy  to  their  going  into  the 
box.  And  sometimes  you  will  find  it  profitable  to 
submit  a  witness  of  your  own  to  a  most  searching 
cross-examination.  As  you  know  him  and  his  nar- 
rative better  than  your  adversary,  you  should  be 
able  to  sift  him  more  closely  than  he  can.  Such  a 
testing  scrutiny  may  often  prepare  both  the  witness 
and  yourself  for  the  trial. 

As  we  leave  the  subject  of  Examination-in-Chief, 


^58  CONDUCT    OF    LITIGATION. 

Ave  must  say  that  the  most  ordinary  fault  that  we 
observe  in  the  courts,  is  the  asking  of  redundant 
(juestions  to  one's  v/itness.  The  examiner  believes 
that  to  exhaust  his  testimony  he  must  keep  up  a 
long  file  of  questions,  where  fewer,  better  considered, 
would  sooner  finish  the  business  completely.  Your 
foolish  question  is  often  a  snare  to  your  witness. 
He  wishes  to  oblige  you,  and  answers  something 
that  the  cross-examination  develops  into  contradic- 
tion, or  support  of  the  adversary.  Let  it  be  your 
aim  always  to  draw  out  what  you  desire  from  your 
witness  by  as  few  questions  as  you  can,  and  to  per- 
mit him  to  answer  to  them  alone. 


CHAPTER  IV. 


CROSS-EXAMINATION. 


After  the  party  calling  the  witness,  whether  he 
be  plaintiff  or  defendant,  has  examined-in-chief,  the 
other  can  cross-examine.  And  he  should  first  con- 
sider whether  he  should  cross-examine  at  all.  The 
witness  may  be  too  shrewd,  or  his  knowledge  may 
be  too  perilous,  or  the  examination-in-chief  may 
have  been  so  stupid  that  it  will  be  helped  by  almost 
any  question  from  the  cross-examiner.  I  have  noted 
that  no  itching  desire  for  anything  else,  not  even 
that  for  speaking,  often  tiresome  or  dangerous,  is  so 
frequently  pernicious  as  that  for  cross-examination. 
It  many  times  requires  great  self-mastery  when  the 
witness  is  turned  over  to  you,  to  announce  at  once 
that  you  have  no  questions  for  him.  This  announce- 
ment should  always  be  made  unless  you  can  with 
reason  expect  no  damage,  or  some  benefit,  from 
exercising  your  right  to  sift  the  witness.  I  note  m 
my  observation,  that  the  wary  veterans  of  the  courts 
cross-examine  less  and  less  as  they  grow  older  in  the 

practice.     By  the  multitude,  cross-examination  is  as 

259 


26o  CONDUCT    OF    LITIGATION. 

much  overrated  as  advocacy.  Sometimes  a  great 
speech  bears  down  the  adversary,  and  sometimes  a 
good  cross-examination  turns  a  witness  inside  out, 
and  shows  him  up  to  be  a  perjured  villain.  But 
usually  cases  are  neither  won  by  speaking  nor  cross- 
examining.  The  tyro's  conception  of  the  purpose  of 
the  latter,  is  that  it  is  intended  chiefly  to  involve 
all  the  adverse  witnesses  in  an  inconsistency  or  self- 
contradiction.  But  you  may  often  see  a  dozen  cases 
tried,  and  no  witness  of  bad  character  make  his 
appearance.  It  is  only  the  profligate  who  swear 
falsely.  And  if  not  the  profligate,  it  is  the  extremely 
heedless  who  make  such  glaring  blunders  and  mis- 
takes,  as  to  destroy  the  credit  of  their  testimony 
These  cautions  I  present  here  in  the  fore-front,  to  be 
attended  to  before  I  give  in  the  next  chapter  the 
suggestions  of  Mr.  Cox  seriatim,  who,  it  appears 
to  me,  though  giving  veiy  valuable  instructions, 
somewhat  overrates  the  importance  of  examining 
your  adversary's  witness. 

The  natural  division  of  the  subject  seems  to  me 
to  be  the  examination  for  the  witness,  whom  you  do 
not  intend  to  attack,  and  that  for  the  other  whom 
you  will  attack.  As  to  the  first,  that  is,  the  cross- 
examination  of  the  witness  whose  credibility  you 
accept,  it  is  intended  to  prevent  the  adversary  from 
garbling  the  evidence  and  winning,  by  giving  only 


CROSS-EX  A  MINA  TION.  26 1 

some  detached  portion,  which  would  be  explained 
away  and  lose  all  of  its  force  were  the  whole  knowl- 
edge of  the  witness  brought  out,  and  also  to  prove 
other  and  independent  facts  supporting  the  case  of 
the  adverse  part}^  A  witness  called  to  prove  the 
admission  of  a  defendant,  that  he  owed  the  plaintiff 
so  much,  after  so  testifying,  is  cross-examined  and 
states,  when  interrogated  as  to  the  w^hole  of  the 
admission,  that  at  the  time  the  defendant  made 
it,  he  said  further  that  it  was  a  gaming  debt, 
or  some  other  illegal  debt.  Here  the  witness  ha? 
really  become  one  for  the  defendant.  Again,  a 
witness  called  to  prove  some  alleged  cause  of  action, 
may  also  know  of  some  valid  discharge  from  it 
— some  facts  that  make  out  the  defense.  Such 
knowledge,  when  drawn  out,  makes  him  to  support 
the  adversary  instead  of  the  party  who  called  him. 
Thus,  a  witness  under  the  direct  examination  may 
prove  the  demand  of  the  plaintiff  as  declared  on, 
and  when  cross-examined  may  further  prove  that  the 
defendant  has  satisfied  the  demand. 

An  honest  witness  may  be  reasoned  with  and 
kindly  led  out  of  many  errors,  and  be  converted  into 
an  ally  at  last.  I  once  knew  a  half  dozen  witnesses 
who,  having  been  summoned  to  prove  a  lower  value 
of  a  parcel  of  land  in  controversy,  were  ordered  out 
of  court  when  the  trial  began,  at  the  application  of 


262  CONDUCT     OF    LITIGATION. 

the  party  who  alleged  a  higher  value.  When  the 
lirst  of  these  witnesses  was  called  in  on  his 
examination-in-chief,  he  answered  plump  that  the 
land  was  worth  only  six  or  eight  dollars  per  acre. 
On  the  cross-examination  he  was  asked  how 
did  it  compare  in  quality  and  value  with  that  of 
Mr.  A,  of  Mr.  B,  of  Mr.  C,  and  so  on  through 
a  round  of  many  plantations  in  the  vicinity.  He 
made  the  land  in  question  a  little  better  than  those 
others  inquired  about.  He  was  then  asked  as  to 
sales  within  the  four  or  five  years  preceding  of  these 
lands,  and  he  had  to  admit  that  twelve  dollars  per 
acre  was  the  lowest  price  that  any  had  brought,  and 
that  the  whole  averaged  about  fifteen  dollars  per  acre. 
When  he  answered  under  his  direct  examination 
that  the  land  was  worth  only  eight  dollars  per  acre, 
being  a  farmer,  he  gave  as  his  reason  that  he  con- 
sidered no  lands  in  that  part  of  the  country  worth 
more  for  farming  purposes.  But  after  he  was 
asked  by  the  adverse  party  if  it  was  not  worth 
what  it  would  command  in  the  market,  he  an- 
swered affirmatively,  and  admitted  further  that  it 
would  bring  in  the  market  about  eighteen  dollars  per 
acre.  Every  other  one  of  the  witnesses  were  dealt 
with  alike,  and  with  a  similar  result.  The  success  of 
this  cross-examination  was  due  to  a  careful  study  of 
these   different  sales :  in  other  words,  to  a  prudent 


CROSS-EXAMINA  TION.  263 

preparation.  Such  a  triumph  is  worth  seeking  after. 
It  leaves  no  heart-burnings  behind.  An  honest  man 
is  made  honestly  to  acknowledge  his  errors.  As 
another  instance  of  where  you  accept  the  testimony 
that  you  draw  out,  you  are  reminded  that  sometimes 
you  can  put  an  adverse  witness  of  high  character 
and  great  influence  in  conflict  with  the  other  wit- 
nesses of  the  adversaiy,  and  demonstrate  from  his 
narrative  that  he  is  worth  them  all. 

As  I  leave  this  division  of  the  subject,  to  wit, 
the  cross-examination  intended  for  witnesses  whose 
narrative  you  mean  to  accept,  I  remind  the  reader 
that  the  longer  he  attends  the  courts,  the  more 
favorably  he  will  be  impressed  with  the  honesty  of 
juries  and  witnesses.  This  sort  of  cross-examination 
is,  therefore,  to  be  the  most  meditated  and  used. 

Our  other  division  comes  next.  We  are  now  to 
consider  the  cross-examination  for  a  witness  whose 
narrative  you  do  not  accept.  And  you  may  attack 
here  without  imputing  perjury  to  him.  And  again 
you  may  brand  him  with  falsehood  ;  and  the  attack 
is  made  generally  in  one  of  two  ways  :  either  you 
make  him  contradict  himself  or  disclose  facts  dis- 
crediting his  narrative,  or  you  draw  him  out  into 
statements  which  will  be  contradicted  by  the  othei 
testimony.  As  instances  of  facts  which  discredit 
without    disgracing   the   witnesses,    relationship    01 


2(H  CONDUCT    OF    L/T/GAT/OJV. 

great  friendship  to  the  party  calling,  may  be  men- 
tioned. And  so  a  witness  who  testifies  to  facts  may 
admit  that  darkness,  or  a  crowd,  or  many  other 
things,  were  in  the  way  of  his  seeing  well.  Or  the 
intrinsic  unreasonableness  of  his  testimony  may  be 
brought  out  clearly.  And  as  we  have  already 
hinted,  the  point  of  the  cross-examination  may  be 
to  put  the  witness  in  conflict  with  the  other  testi- 
mony. He  may  be  led  into  statements  which  may 
be  disproved  by  the  fellows  of  his  own  side,  or  into 
statements  which  your  own  witnesses  may  bear 
down  with  superior  counter  testimony.  Or  the  still 
more  destructive  attack  of  successful  impeachment 
by  proof  of  statements  made  by  him,  contradicting 
his  present  testimony,  may  be  made.  The  manual 
of  evidence  will,  if  consulted,  give  ample  instruc- 
tions. 

No  cfreater  difference  is  seen  between  the  old 
and  young  lawyer  anywhere,  than  that  which  may 
be  noted  in  examining  adverse  witnesses.  The 
young  counsel  in  the  novitiate  of  his  practice,  always 
deems  it  his  duty  to  make  even  the  most  honest 
and  intelligent  men  contradict  themselves.  While, 
on  the  other  hand,  his  gray-headed  brother  will  gen- 
erally be  found  handling  the  witnesses  of  his  adver- 
sary with  great  caution,  and  but  seldom  essaying  to 
involve  any  one,  except  some  poor  creature  whose 


CROSS  EX  A  MINA  TION.  265 

face  shows  his  lowness,  in  a  glaring  inconsistency. 
The  veteran  will  be  found  in  most  of  his  cross- 
examining  attacks,  leading  the  witness  into  irrecon- 
cilable oppugnancy  with  preponderant  evidence,  or 
laying  the  foundation  for  impeachment,  or  drawing 
out  facts  which  show  the  witness  biased  or  mis- 
taken. 

And  I  must  not  forget  to  enforce  the  impor- 
tance of  due  preparation  by  the  lawyer  for  the 
particular  witness  he  is  to  cross-examine.  To  use  a 
current  colloquialism,  it  will  many  times  pay  to  turn 
over  carefully  in  your  mind,  in  your  closet,  the  tes- 
timony expected  to  support  the  case  of  your  adver- 
sary. It  will  often  arm  you  with  weapons  of  utter 
demolition. 

I  well  recollect  the  management  of  a  lawyer 
who  undertook  the  defense  of  a  negro  man,  charged 
w"ith  the  murder  of  a  white  girl,  who  had  been 
found  dead,  the  signs  on  her  person  indicating  the 
old  tale  of  rape.  The  evidence  against  the  defend- 
ant was  purely  circumstantial,  but  it  was  thought 
conclusive  by  the  people,  who  had  been  worked 
up  a'mort  to  a  frenzy  against  him.  The  lawyer  had 
his  own  reasons  for  believing  his  client  innocent, 
and  that  the  guilty  man  was  somewhere  in  the 
crowd  of  witnesses  who  eagerly  pressed  forward  to 

damn  the  cowering  prisoner.      There   had  somehow 

25 


266  CONDUCT  OF  LI  TIG  A  TION. 

been  two  examinations  of  the  defendant  by  a  magis- 
trate, and  the  counsel  had  been  informed  that  at  each 
the  prosecutor,  a  relative  of  the  deceased,  had  finished 
his  testimony  as  to  tracing  the  tracks  of  a  man,  dis- 
covered near  the  dead  body  the  day  after  it  had  been 
found,  to  where  a  sudden  rain,  occurring  while  he  was 
following  the  tracks,  put  them  out  in  a  road  a  mile 
from  the  prisoner's  house,  by  saying  that  he  thought 
it  useless  to  go  any  further,  as  he  knew  who  the  mur- 
derer was,  meaning  the  prisoner,  of  course.  This 
opinion  was  not  legal  testimony,  but  the  lawyer  de- 
cided not  to  object  to  it,  and  to  draw  it  out  if  he  could, 
if  it  did  not  come  out  spontaneously.  He  had  begun 
to  see,  as  he  believed,  that  there  was  something  false 
and  hollow  in  the  zeal  of  this  avenger  of  blood.  It 
is  useless  to  tell  all  of  the  incidents  of  the  trial 
The  prosecutor  was  the  main  witness  to  identify 
the  tracks  mentioned  above  as  those  of  the  prisoner. 
The  lawyer,  as  he  expected,  heard  at  the  trial  the 
prosecutor  blurt  out  again  the  declaration  that  when 
the  rain  came  up,  he  was  then  satisfied  who  the 
murderer  was,  intimating  without  much  obscurity 
that  it  was  the  prisoner.  When  turned  over  for 
cross-examination,  the  prisoner's  lawyer  began  by 
repeating  to  him  that  he  had  stated  that,  when 
the  rain  came  up,  he  was  satisfied  then  of  the 
prisoner's  guilt,  to   which    the    witness,  with  some 


CROSS-EXAMINA  TION.  267 

show  of  insolence,  assented.  He  was  then  cabiily  re- 
minded that,  at  that  point  of  time,  the  prisoner  had 
not  been  apprehended,  wearing  boots  which  the  State 
claimed  to  fit  the  tracks,  nor  had  an)^body  then  de- 
tected stains  on  the  prisoner's  clothing,  claimed  to  be 
blood  spots  ;  and  he  was  quietly  asked  to  state  all  of 
the  reasons  which  he  had  at  the  time  the  rain  came 
up,  for  believing  the  prisoner  to  be  the  guilty  man. 
He  gave  only  three,  to  wit :  the  general  direction  of 
the  tracks,  a  conversation  which  he  had  testified  to 
having  had  with  the  prisoner  about  the  girl  a  few 
months  before  her  death,  and  information,  which  had 
been  given  him  about  the  same  time  by  the  girl's 
mother,  of  a  visit  the  prisoner  had  made  to  her  house 
at  night.  He  did  not  give  these  rea^sons  at  once. 
He  had  to  be  quizzed  a  long  time.  It  was  the  law- 
yer's purpose  to  make  this  sifting  attended  to.  He 
forced  upon  the  w^itness  ample  time  to  reflect, 
who,  after  many  trials,  gave  up,  and  said  he  knew 
that  he  had  no  other  than  the  three  reasons  men- 
tioned. Now  for  the  lawyer's  aim  in  thus  com- 
mitting the  witness  so  irrevocably  to  the  three  rea- 
sons. He  made  such  a  stout  defense  of  an  alibi,  and 
had  entangled  so  many  of  the  eager  and  heedless 
witnesses  for  the  State  into  contradictions  of  their 
testimony  reported  by  the  magistrate,  that  when 
he  closed,  the  State  replied  with  a  great  array  of 


268  CONDUCT    OF    LITIGATION. 

new  evidence.  The  prosecutor's  brother  testified 
to  a  threat  he  had  heard  the  prisoner  a  few  days 
before  her  death  make  against  the  deceased.  Under 
cross-examination,  veiling  his  purpose  under  a 
throng  of  questions,  our  lawyer  drew  out  of  him 
that  he  had  communicated  this  to  the  prosecutor 
the  day  before  the  rain.  The  prosecutor's  daughter 
testified  to  having  stolen  on  a  clandestine  meeting 
of  the  prisoner  with  the  deceased  a  few  days 
before  the  homicide.  She  was  likewise  led  so 
quietly  to  tell  that  she  had  communicated  this  to 
her  father  before  the  rain,  that  no  one  noticed  it. 
And  at  last  came  the  prosecutor's  wife,  who  testified 
that  the  deceased  in  an  interview  with  the  witness 
the  day  befoi'e  her  death,  told  her  that  she  expected 
to  meet  the  prisoner  on  the  morrow  in  the  field 
where  she  was  found  dead.  She  likewise  was  made 
to  say  that  she  had  told  all  this  to  her  husband 
the  day  before  the  rain.  And  thus  was  the  prose- 
cutor destroyed;  for  this  new  evidence  of  his  own 
family  had  given  him  many  more  and  stronger 
reasons  for  believing  the  guilt  of  the  prisoner  than 
the  three  he  had  stated  as  all  that  he  had,  when 
allowed  full  time  for  deliberation.  In  fact,  this 
new  evidence,  if  true,  showed  that  the  prosecutor 
should  have  lost  no  time  searching  for  tracks  and 
blood  stains,  as  he  did,  but  that  he  should  have  at 


CROSS-EXAMINATION.  269 

once  known  the  prisoner  to  be  the  doer  of  the 
crime,  as  soon  as  he  learned  of  the  homicide.  That 
all  this  evidence,  so  much  more  satisfactory  than 
the  rest,  if  true,  and  so  palpably  pointing  at  the  real 
ofTeiider,  had  not  'been  produced  on  either  of  the 
preliminary  investigations,  in  which  every  one  of 
these  witnesses  had  testified,  re-enforced  the  attack 
upon  the  prosecutor  a  hundred-fold.  Nobody,  not 
even  the  judge,  nor  any  of  the  audience,  nor  jury, 
nor  sharp-sighted  lawyers  who  represented  the  pros- 
ecution, were  aware  of  the  successful  attack  on 
this  witness  till  the  argument  showed  it  up  clearly. 
The  poor  man's  life  was  saved,  and  the  upshot  of 
the  Vvdiole  matter  was,  that  the  prosecutor's  brother,  a 
distant  relative  of  the  deceased,  who  had  testified  to 
the  threat,  was  detected  as  the  real  murderer.  This 
demolition  of  the  main  witness  for  the  State  was 
achieved  because  the  lawyer  knew  his  ground  from 
having  meditated  it,  and  it  was  no  very  shrewd 
guess  of  his,  suspecting  strongly  as  he  did,  the 
prosecutor  of  at  least  knowing  who  was  the  guilty 
man,  that  the  prosecution  would  reply  to  his  strong 
defense  with  new  evidence  inconsistent  with  the 
first,  and  that  he  Vv^ould  have  to  furnish  it.  The  law- 
yer, from  conning  over  the  report  of  the  magistrates, 
saw  that  he  would  necessarily  involve  the  State's 
witness  in  many  contradictions,  and  he  felt  confident, 


270  CONDUCT    OF    LITIGATION. 

too,  that  this  would  bring  back  many  of  these 
witnesses  a  second  time,  when  they  would  be  found 
a  still  more  easy  prey. 

And  it  is  to  be  noted,  too,  that  some  of  the 
testimony  was  technically  illegal.  A  lawyer  more 
often  injures  than  benefits  his  case,  by  having  illegal 
testimony  excluded. 

I  will  give  another  instance  where  a  life  was 
saved  by  a  cross-examination  carefully  meditated, 
and  the  testimony  anticipated  carefully  met  by 
thorough  preparation. 

A  master  one  morning  at  breakfast  suspected 
poison  in  his  coffee,  and  immediately  accused  his 
cook.  The  negro  was  thought  to  evince  manifest 
signs  of  guilt.  The  whole  family  showed  alarming 
symptoms  at  once,  and  the  master  in  his  rage  made 
the  cook  drink  all  the  remaining  coffee.  She  fell 
into  convulsions.  Of  course  it  was  poison.  Mem- 
bers of  the  family  saw  in  the  coffee  grounds  frag- 
ments of  the  fatal  buckeye.  The  doomed  slave  was 
hurried  throuo-h  an  examination,  and  committed 
for  the  capital  offense  of  attempting  to  poison. 
One  of  the  greatest  advocates  whom  I  ever  knew, 
whose  heart  went  out  in  yearning  love  for  the 
poorest  and  lowliest  in  distress,  inquired  into  her 
case.  He  quietly  learned  all  of  the  testimony 
against  her.    Every  one  who  had  drank  the  poisoned 


CROSS-EXAMl.YA  TION.  271 

coffee  had  sworn  to  its  unusually  bitter  taste.  It 
chanced  that  the  advocate  had  been  lately  by  his 
dentist  prescribed  a  decoction  of  buckeye  for  tooth- 
ache, and  he  knew  its  taste  was  sweet  instead  of 
bitter.  But  he  was  too  prudent  to  proclaim  his 
dissent.  The  infuriated  family  learning,  the  mob 
might  have  balked  him.  He  waited  till  the  trial, 
when  he  went  into  court,  and  calmly  volunteered 
to  defend  the  frightened  woman.  The  court,  of 
course,  assigned  him  to  be  her  counsel.  He  made 
all  of  the  witnesses  for  the  State  dilate  on  the  bitter 
taste  they  had  testified  to  at  the  examination — he 
almost  made  them  quarrel  with  him,  by  appearing 
to  doubt  their  memories— bitter-tasted  the  coffee 
was — they  had  never  tasted  anything  so  bitter.  His 
only  evidence  was  a  glass  of  fluid,  proven  by  the 
dentist,  a  man  well  known  to  all  of  the  jury,  to  be  a 
decoction  of  buckeye.  The  glass  was  handed  to  the 
judge;  he  tasted;  then  to  the  jury;  all  of  them  took  a 
timid  taste  ;and  in  a  few  minutes  there  was  a  verdict 
of  acquittal.  The  bitterness  had  no  doubt  been  the 
result  of  negligence  with  the  cofifee-p  .,  and  fright 
had  caused  the  convulsions  into  which  the  cook 
had  fallen.  Witches,  however,  have  been  burnt,  and 
other  women  both  bond  and  free,  have  been  con- 
victed on  evidence  less  satisfactory  than  that  against 
this   slave    and,   with  sadness  be  it   said,  executed 


272  CONDUCT    OF    LITIGATION. 

This  great  advocate  had  often  delivered  prisoners 
from  the  dread  penalty,  and  his  name  was  in  all 
men's  mouths  for  his  matchless  tact  and  unrivaled 
eloquence ;  but  to  his  immortal  honor  be  it  told 
that  he  ever  counted  his  unfeed  and  unostentatious 
defense  of  this  friendless  slave  among  the  proudest 
of  his  victories. 

And  I  will  give  still  another  instance_^  of  cross- 
examination  as  introductory  and  corroborative  of  a 
carefully-prepared  defense.     It  is  from  the  Forum.' 

"  A  young  and  interesting  girl,  of  respectable 
position,  had  trusted  and  been  betrayed.  She  be- 
came a  mother.  At  the  age  of  three  weeks  the 
child  died  somewhat  suddenly.  A  post-moi'tem 
examination  took  place.  The  death  v/as  said  to 
have  been  produced  by  arsenic,  and  the  medical 
witnesses  strengthened  that  opinion  by  testimony. 
The  mother  was  indicted  for  murder,  and  was  tried 
before  Judge  Symser,  of  Montgomery  County,  a 
humane,  and  industrious,  and  eminent  judge. 

"In  addition  to  the  scientific  evidence,  and  in 
strong  corroboration  of  it,  it  was  shown  that  a  day 
or  two  before  the  death  of  her  infant,  the  mother 
had  sent  for  half-an-ounce  of  arsenic  to  a  grocer's. 
That  after  the  death,  the  arsenic  was  taken  to  the 
grocer's    and    weighed,    and    had   lost   twenty-four 

'     2    Vol.   455. 


CROSS-EXAM  IN  A  TION  273 

grains  in  its  weight.  This  circumstance,  together 
with  the  opinion  of  the  chemist,  presented  a  strong 
case.  Neither  was  sufficient  in  itself,  but  together 
they  were  dangerous.  Of  course  the  cross-examin- 
ation as  to  the  weight  was  very  rigid  and  severe. 
Upon  this  particular  point  it  ran  thus  : 

"  '  When  the  arsenic  was  purchased,  how  did  you 
weigh  it } ' 

"  '  I  weighed  it  with  shot' 

" '  How  many  shot  ? ' 

"  '  Six.' 

"  '  Of  what  description  ?  * 

" '  No.  8.' 

"  '  When  it  was  returned  to  you,  did  you  weigh 
it  in  the  same  scales  1 ' 

" '  Yes.' 

"  '  Did  you  weigh  it  with  the  same  shot  ?  * 

"  '  I  weighed  it  with  shot  of  the  same  number,  for 
I  had  no  other  number.' 

"  '  How  much  less  did  it  weigh  }  ' 

"  '  Twenty-four  grains  less.' 

"  It  was  plain  that  the  testimony  bore  hard  upon 
the  prisoner,  but  at  this  stage  of  the  case  the  court 
adjourned.  Immediately  my  colleague  (Mr,  Boyd) 
and  myself  visited  the  stores  of  all  the  grocers,  and 
took  from  various  uncut  bags  of  No.  8  the  requis- 
ite number  of  shot,  subjected  them  to  weight  in  tie 


274  CONDUCT    OF    LITIGATION. 

most  accurate  scales,  and  found  that  the  same  num 
ber  of  these  different  parcels  of  shot  varied  more  in 
weieht  than  the  difference  referred  to  as  detected  in 
the  arsenic  at  the  time  of  its  return.  The  shot,  the 
grocer,  the  apothecary,  the  scales,  were  all  brought 
before  the  court.  They  clearly  established  the  facts 
stated,  etc." 

We  have  said  that  the  detection  of  a  witness  in 
palpable  perjury  is  but  seldom,,  and  that  such  detec- 
tion generally  occurs  only  to  one  Vviiose  face  or  bad 
character  would  by  themselves  deprive  him  of  credit. 
As  the  lawyer  must,  however,  be  prepared  to  deal 
occasionally  with  reckless  swearers,  we  will  give 
some  instances  where  such  v.^ere  brought  to  grief. 
The  first  is  told  by  Judge  Sharswood  : 

"  He  [a  gentleman  of  the  bar  of  Philadelphia] 
allowed  nothing  that  occurred  in  a  cause  to  disturb 
or  surprise  him.  On  an  occasion  in  one  of  the 
neighboring  counties,  the  circuit  of  which  it  was  his 
custom  to  ride,  he  w^as  trying  a  cause  on  a  bond, 
when  a  witness  for  defendant  was  introduced,  who 
testified  that  the  defendant  had  taken  the  amount 
of  the  bond,  which  was  quite  a  large  sum,  from  his 
residence  to  that  of  the  obligee,  a  distance  of  several 
miles,  and  paid  him  in  silver  in  his  presence.  The 
evidence  was  totally  unexpected  ;  his  clients  were 
orphan  children  ;  all  their  fortune  was  staked  on  this 


CROSS-EXAMINATION.  275 

case  The  witness  had  not  yet  committed  himself 
as  to  how  the  money  was  carried.  Without  any 
discomposure,  without  lifting  his  eyes,  or  pen  from 
paper,  he  made  on  the  margin  of  his  notes  of  trial 
a  calculation  of  what  that  amount  in  silver  would 
weioh  ;  and  when  it  came  his  turn  to  cross-examine 
calmly  proceeded  to  make  the  witness  repeat  liis 
testimon}'  step  by  step — when,  where,  how,  and  how 
far  the  mon.y  \ms  carried,  and  then  asked  him  if  he 
knew  how  r,  'h  that  sum  of  money  weighed,  ar.d 
upon  naming  the  amount,  so  confounded  the  wit- 
ness, party,  and  counsel  engaged  for  the  defendant, 
that  the  defense  was  at  once  abandoned,  and  a  ver- 
dict for  the  plaintiff  rendered  on  the  spot." ' 

Now  for  another  instance   of  manifest   perjury 
detected : 

An  outrasfc  of  violence  had  been  committed  at 
night,  and  the  State,  endeavoring  to  identify  the 
prisoners  charged  as  the  offenders,  introduced  a  wit- 
ness who  testified  that  he  met,  a  moment  after  the 
outrage,  a  party  of  men  coming  away  from  the  place, 
with  whom  he  held  a  brief  parley  in  the  dark.  He 
further  swore  that  these  men  were  mounted  and 
disguised,  and  that  it  was  very  dark,  there  being  no 
moon  ;  that  he  could  recognize  none  of  them,  but 
that  he  did  recognize  the  horse  of  one  of  the  pris- 
'  Legal  Ethics,   11. 


276  CONDUCT    OF   LITIGATICN. 

oners,  which  that  particular  defendant  usually  rode. 
On  cross-examination  the  witness  said  he  was  only  in 
front  of  the  horse,  and  about  five  or  six  feet  off,  and 
repeated  his  previous  narrative  of  the  extreme  dark- 
ness of  the  night.  Fie  was  then  drawn  on  to  make 
some  absurd  statements  of  his  power  on  such  a  night 
to  distinguish  a  brown  horse  from  a  bay,  and  a  dark- 
brown  from  a  medium-brown,  when  in  one  of  his  re- 
plies he  spoke  of  the  prisoner's  mare.  He  was  immedi- 
ately asked  if  he  knew  that  night  she  was  a  mare,  and 
he  said  yes.  He  was  then  asked,  as  he  stood  at  her 
head,  how  could  he  tell  in  the  dark  that  the  animal 
was  a  mare ;  and  the  question  dumbfounded  him.  His 
perjury  had  been  apparent  from  the  moment  of  his 
saying  that  he  could  distinguish  a  dark-brown  from  a 
medium-brown  that  night ;  but  he  was  not  checked, 
and  graveled  in  his  voluble  lies  until  the  last  ques- 
tion left  him  no  cover  or  loop-hole. 

Such  blunders  of  witnesses  will  sometimes  be 
overlooked.  All  the  counsel  engaged  should  keep 
their  attention  fixed  on  the  answers.  The  associate 
quietly  listening  will  often  detect  that  which 
escapes  the  questioner. 

We  will  here  illustrate  our  subject,  by  the 
famous  cross-examinations  of  Majocchi  and  of 
Louise  Demont,  in  the  trial  of  Queen  Caroline. 

These    two  witnesses  called  by  the  prosecution 


CKOSS-EXAMINA  TION.  zyj 

to  prove  that  the  Ouccn  had  committed  adultery 
with  her  menial  Bergami,  testified  to  a  great  many 
circumstances  which,  if  true,  estabhshed  her  guilt 
beyond  question. 

Majocchi  having  in  his  direct  examination  nar- 
rated incidents  and  details  extending  through  a  long 
time,  and  to  many  places,  was  thoroughly  sifted  by 
Brougham,  who  interrogated  as  to  a  vast  number 
of  contemporary  surroundings,  to  which  the  witness 
had  not  before  testified.  Majocchi  would  often 
profess  not  to  remember. 

I  will  copy  from  the  speech  of  Brougham  in 
defense  of  the  Oueen,'  a  sufficient  number  of  extracts 
to  give  the  reader  some  understanding  of  the  skillful 
questioning  of  this  witness,  and  his  answers.  It 
will  do  no  harm  to  see  how  a  most  able  cross-exam- 
ination was  most  ably  commented  upon,  and  set 
forth  and  enforced  in  argument. 

"  He  [Brougham]  would  proceed  at  once  to 
give  their  lordships  proof  positive  of  this  man's 
perjury,  and  this  he  would  do  by  adverting  to  his 
mode  of  forgetting.  In  the  iirst  place,  he  begged 
leave  to  direct  their  lordships'  attention  to  the  way 
in  which  this  witness  swore  as  to  the  position  of  the 
rooms  of  Bergami  and  the  Queen.      .     .      .     The 

»  The. trial  of  Queen  Caroline,  Vol.  II.  35,  e/  seq.     (New 
York,  1874.) 


?;8  CONDUCT    OF    LITIGATION. 

great  object  of  the  Attorney-General,  as  shown  by 
the  opening,  and  as  evinced  by  the  whole  of  his 
examination  was  to  show  a  communication  between 
these  apartments;  and  the  manner  in  .vh'ch  Majoc- 
chi  answered,  indicated  that  he  was  privy  to  the 
concoction  of  the  plan.  The  object  of  the  plan  was 
to  prove  the  position  of  the  rooms  of  the  Queen  and 
of  Bergami,  always  to  have  been  favorable  to  the 
commission  of  adultery,  by  showing  that  they  were 
near,  and  had  a  mutual  communication,  whereas  all 
the  rooms  of  the  rest  of  the  suite  were  separated  and 
cut  off  from  those  apartments.  .  .  .  There  was 
more  appearance  of  proof  in  his  testimony  on  this 
point — it  presented  more  accuracy  of  detail  than  that 
of  the  other  witnesses — when  he  was  examined  with 
a  view  to  extract  criminatory  matter  against  the 
Queen ;  but  he  was  not  prepared  for  any  attack,  and 
his  regular  custom  was  utterly  to  forget  himself,  in 
order  that  he  might  be  protected  against  the  severity 
of  a  cross-examination. 

"  The  questions  constantly  asked  V\'ere  :  *  Where 
did  the  Queen  sleep  .?'  '  In  an  apartmcL.  near  that  of 
Bergami.'  '  Were  those  apartments  near  or  remote  } ' 
'  They  were  near.'  Questions  of  this  kind  w^ere  asked 
over  and  over  again,  so  good  a  thing  was  it  thought 
to  procure  the  answer  that  the  apartments  were 
near,'  repeated  with  success.     The  same  answer  was 


CROSS  EXA  MINA  TION.  279 

invariably  given.  Bergami  was  represented  as  occu- 
pying an  apartment  near  that  of  the  Queen,  with 
which  there  was  a  communication  sometimes  by  a 
passage,  sometimes  by  a  room,  sometimes  by  a  door. 
Then  it  was  asked :  '  Did  the  rest  of  the  suite  Hve 
apart  ?  Were  they  distant  or  near  to  the  Queen  ? 
Was  such  the  position  at  Naples  ?  ' 

"  It  was  important  to  advert  to  this  point,  because 

more  was  made  of  the  approximation  of  the  chambers 

at  Naples,  than  at  any  other  place.      In  the   direct 

examination    the   witnesses  were  asked  :    '  Did  the 

people  of  the  suite  sleep  in  that   [the  Queen's]  part 

of  the  house    or  at    a  distance .? '     And  the   Italian 

word  in  answer  was  '  lautano  '  which  was  interpreted 

'apart'     He  [Mr.  Brougham],  however,  remarked  at 

the  time,  that  it  meant  '  distant,'  and  distant  it  meant 

or  it  meant  nothing.     Here,  then,  the  witness  had 

sworn  distinctly  from  his  own  positive  recollection, 

and  staked  his  credit  upon  the  truth  of  a  fact,  upon 

this  fact  *  that  the  rest  of  the  suite  lodged  apart  and 

distant  from  the    Queen,'  which,  coupled  with  the 

statement   that   the    rooms  of  her   Majesty  and  of 

Bergami    communicated    together,   must   have    the 

effect  of  combining  both  these  circumstances  as  a 

proof  that    means   were   adopted   to    indulge   in    a 

criminal  intercourse.    Majocchi  positively  stated  in 

the  hrst  instance  that  the  '  suite  lodged   apart  and 


28o  CONDUCT    OF    LITIGATION. 

distant  from  that  portion  of  the  house  occupied  by 
the  Queen/  Was  there  not  then  an  end  of  this 
'  innocent  forgetfulness,'  if  when  he  [Mr.  Brougham] 
came  to  ask  him  in  his  cross-examination  where  the 
suite  slept,  he  altogether  falsified  his  former  statement 
and  told  him,  '  I  don't  know,'  or  '  I  don't  recollect.' 

.  .  .  When  he  spoke  of  the  proximity  of  the 
rooms  in  the  one  case,  and  their  remoteness  and  dis- 
severance in  the  other  case,  and  when  he  afterwards 
declared  with  reference  to  the  latter  that  he  did  not 
remember  where  the  suite  slept,  it  was  clear  that  he 
had  perjured  himself  one  way  or  the  other,  he  cared 
not  which,  as  much  as  if  he  swore  he  saw  a  person 
one  day  and  swore  he  did  not  on  the  next." 

The  speaker  next  proceeded  to  show  that  Majocchi 
could  recollect  in  matters  where  he  was  not  afraid  to 
speak. 

"  In  cross-examination  he  [Mr.  Brougham]  asked 
the  witness — (and  he  did  it  to  show  his  accuracy  of 
recollection  on  particular  points  where  the  evidence 
had  been  well  drilled  : 

" '  Have  you  ever  seen  the  Villa  D'Este  since  the 
time  you  came  back  from  the  long  voyage .? '  'I 
have.'  '  Was  the  position  of  the  rooms  the  same 
as  it  had  been  before  with  respect  to  the  Queen  and 
Bergami  ? '  *  They  were  not  in  the  same  position  as 
before.' 


CROSS-EXAMINATION.  281 

"  And  then  the  witness  told  a  long  story  describ- 
ing the  alterations.  '  There  was,'  he  stated,  '  a  stair- 
case on  one  side  of  the  Princess's  room.  There  was 
a  small  corridor,  on  the  left  of  which  there  was  a 
door  that  led  into  the  room  of  the  Princess,  which 
was  only  locked ;  and  then  going  a  little  farther  on 
in  the  corridor,  there  was  on  the  left  hand  a  small 
room,  and  opposite  to  this  small  room  there  was 
another  door  which  led  into  the  room  where  they 
supped  in  the  evening.  There  was  this  supping- 
room  on  the  right,  there  was  a  door  which  led  into 
Bergami's  room,  and  on  the  same  right  hand  of  the 
same  room  there  was  a  small  alcove  where  there  was 
the  bed  of  Bergami.  I  saw  two  doors  open  always, 
but  there  was  a  third  stopped  by  a  picture.' 

"  Now  could  any  recollection  be  more  minute 
than  the  recollection  of  a  man  who  could  state  all 
these  particular  circumstances.^  .  .  .  He  [Mr. 
Brougham]  only  wished  their  lordships  to  contrast 
with  this  minute  recollection  of  rooms,  doors,  and 
corridors,  the  circumstance  of  Majocchi  not  having 
the  slightest  recollection  of  a  whole  new  wing 
added  to  the  house  in  which  her  Majesty  had  lived. 

"  He  observed  the  most  trifling  destinction  of 
time  when  that  suited  his  purpose,  and  he  recollected 
nothinTT  of  time  when  it  was  inconvenient  for  hi? 


282  CONDUCT    OF    LITIGAriON. 

object.  In  proof  of  this,  their  lordships  were  re- 
quested to  refer  again  to  the  celebrated  scene  at 
Naples.  This  witness  remembered  down  to  minutes 
the  tl:nc;  which  her  Majesty  had  pei.3sed  at  two 
different  times  in  Bergami's  room.  The  first  was 
from  ten  to  fifteen  miutes,  the  second  from  fifteen 
to  eighteen  minutes.  Here  the  mean  time  was 
sixteen  minutes  and  a  half.  The  witness  went  to 
the  window  and  fired  a  gun,  exactly  three  minutes 
afterwards.  A  quarter  of  an  hour  was  then  stated 
with  equal  accuracy,  and  afterwards  three  quarters 
of  an  hour.  All  this  was  in  answer  to  his  learned 
friend;  ail  this  was  in  the  examination-in-chief;  all 
this  was  thought  by  the  witness  essential  to  his 
story ;  all  this  was  to  garnish  his  story  with  an 
appearance  of  accuracy  essential  to  his  purpose. 
.  .  .  .  When  it  [minute  accuracy]  was  of  use, 
not  to  the  prosecution  but  to  the  defense,  then  he 
could  not  recollect  whether  it  was  a  whole  night,  or 
eight  hours,  or  any  definite  period. 

"  '  Why  could  you   not   recollect   the    period   of 
time  Oil  this    ccasion  as  well  as  on  o'_Iier  oc  asions  ? 
'  I  had  no  WaLch.'     '  Had  you    a   watch    vvnen    you 
reckoned  a  minute  and  the  fraction  of  a  minute  ? 
No.' 

"  Why,  then,  did  Majocchi  know  the  precise  time 
on  one  occasion,  and  not  recollect  anything  of  time 


CROSS-EX  A  MINA  TION.  283 

at  another  occasion  ?  He  pleaded  the  want  of  a  watch 
only  when  the  defense  could  be  served  by  time,  or 
when  he  was  asked  something  which  he  conceived  their 
lordships  Vv^ould  consider  of  importance  for  the  defense. 
"  Majocchi  answered  no  categorical  questions. 
When  asked  as  to  the  number  of  sailors  present,  he 
could  not  tell  whether  it  was  two  or  twenty-two. 
As  to  place  he  was  equally  in  fault,  akhouL,li  he 
slept  in  the  hold  of  the  ship,  and  all  who  slept,  slept 
in  the  hold  too,  he  could  not  tell  the  others  that 
slept  at  any  time  there  by  day  or  by  night." 
*  ■  >  '  •  * 

"  In  the  same  manner  this  witness  knew  nothing 
of  Mr.  Hughes  ;  he  never  knew  a  banker's  clerk  ;  he 
knew  nothing  of  the  name ;  he  had  never  known 
any  of  that  name,  or  any  banker's  clerk.  But  when 
he  saw  that  he  [Mr.  Brougham]  had  a  letter  in  his 
hand,  and  before  he  had  in  anything  refreshed  the 
witness's  memory,  he  clearly  showed  that  he  had 
never  forgotten  either  the  name  or  the  place. 

"He  [Mr.  Lrougham]  must  also  remind  their 
lordships  of  the  incredible  story  told  by  Majocchi, 
when  he  would  have  them  believe  that  the  Queen, 
having  free  access  to  Bergami's  room  through  rooms 
where  no  person  slept,  chose  rather  to  pass  through 
an  occupied  room.     The  witness  would  at  first  have 


284  CONDUCT    OF    LITIGATION. 

represented  that  there  was  no  other  access,  but  after 
much  equivocation  and  perjury  he  admitted  that  there 
was  another  access ;  yet  having  admitted  that  the 
Queen  had  easy,  safe,  and  ready  access  to  the  place  of 
guilt,  he  represented  that  she  preferred  to  pass  through 
another  room,  where  Majocchi  slept— ;-where  he  slept 
in  a  bed  without  curtains  ;  that  she  preferred  to  pass 
through  a  room  so  small,  that  she  must  have  touched 
the  bed — through  a  room  where  a  fire  was  burning  ; 
and  what  was  most  monstrous  of  all,  they  were  to  be- 
lieve that,  to  make  detection  sure,  she  stopped  in  her 
passage  through  the  room,  and  looked  in  the  face  of 
Majocchi  to  ascertain  whether  he  was  asleep. 

"  He  [Majocchi]  denied  that  he  had  been  dis- 
missed by  her  Royal  Highness ;  but  said  he  had  left 
her  service  because  of  the  bad  people  that  were 
about  hen  This  he  said  with  the  double  purpose  of 
raisins:  his  own  character  and  debasino^  the  Queens 
But  he  [Mr.  Brougham]  would  show  this  to  be 
false  from  his  own  mouth.  When  asked  whether  he 
had  not  made  application  to  get  back,  his  answer 
was,  *  I  don't  recollect.' 

" '  Did  you  apply  to  Count  Schiavini  to  be  taken 
back  }'     'I  did.' 

"The  moment  he  mentioned  that,  his  assertion 
that   he  did  not  recollect  failed  ;  therefore  to  save 


CROSS-EX  A  MIN A  TION.  285 

himself  he  told  them  all — and  very  material  it  was 
for  their  lordships'  consideration — '  Yes,  yes  (cosi, 
cosi),  I  did  apply  to  Schiavini,  but  it  was  in 
joke.' 

"  Now  their  lordships  would  mark  that.  The 
former  answers  were  probable,  if  this  was  in  joke  ;  if 
not,  they  were  positive  perjury.  If,  then,  this  was  in 
joke,  what  followed  he  would  have  at  once  ans- 
wered by  'No.' 

"  '  Did  you  apply  to  several  persons  .'*  Did  you 
apply  to  Flieronimus  }  '     '  Noii  mi  rccordol 

"  This  last  answer  was  gross  and  willful  perjury, 
or  the  first  answer  was  gross  and  willful  perjury.  .  . 
The  joke,  in  fact,  was  an  invention  to  protect  the 
other  invention,  or  the  story  was  perfectly  incredible 
that  he  applied  in  a  joke  to  Schiavini,  and  that  he 
did  not  recollect  whether  he  applied  to  others. 
Their  lordships  recollected  the  manner,  too,  of  this 
witness.  He  showed  some  flourishing  and  figure  : 
'  I  would  rather  eat  grass  than  go  again  into  the 
service  of  the  Princess.'  Was  it  true,  and  vv^as  it  the 
language  of  an  honest  man,  that  he  v/ould  rather  eat 
grass  than  go  back  ;  that  he  applied  in  joke  to  be 
taken  back  ;  and  that  he  could  not  afterwards  swear 
that  he  had  not  applied  to  others  to  be  taken  back .? " 

Our  limited  space  will  allow  us  to  give  no  more 
of  this  famous  witness.      Our  readers  will  all  aeree 


286  CONDUCT    OF    LITIGATION. 

with   Lord   Campbell,  who  in    his   "  Life   of    Lord 
Brougham,"  says  : 

"  The  first  witness  was  Tcodoro  Majocchi,  postil- 
ion to  General  Peno.  If  his  evidence-in-chicf  was 
believed,  he  proved  abmidantly  enough  to  establish 
the  guilt  of  the  Queen,  but  he  entirely  broke  down 
when  cross-examined  by  Mr.  Brougham  ;  and  to  a 
long  succession  of  questions  respecting  matters  of 
which  he  must  have  had  a  lively  recollection,  the 
only  answer  to  be  obtained  from  him  was — '  Non 
vii  recordol  which  passed  into,  and  still  continue, 
household  words '  in  Eno-land  for  denotins:  men- 
dacityr 

The  cross-examination  by  Willirins  of  Louise 
Demont  in  the  same  trial,  is  likewise  a  model.  She 
was  more  ingenious  and  ready  than  Majocchi,  and 
her  demolition  was  not  so  apparent.  Still  her  sift- 
ing seems  to  me  more  lawyer-like,  systematic,  and 
exhaustive,  than  that  of  the  other. 

Now  and  then  a  tremendous  tide  of  favoring 
feeling  or  great  partisan  influence  is  at  work  for  the 
wrong  side  of  the  case,  and  fast  and  reckless  wit- 
nesses, prompted  by  the  popularity  and  strength 
of  the  preferred  party,  come  into  the  box  with  helping 
fictions.  As  the  people  who  hear  wish  that  side  to 
succeed,  they  are  unable  to  see,  at  first,  the  utter  un- 
reliableness  of  the  testimony.     The  cross-examiner 


CROSS-IiXAAnyA  TION.  287 

here  must  be  cool,  and  he  must  leave  no  stone  un- 
turned. Let  him  make  clean  work.  To  do  this  he 
must  be  self-composed  and  exhaustive  in  his  exam- 
ation  ;  aiming  to  so  clearly  demonstrate  the  falsity 
of  the  adverse  evidence,  that  if  he  do  not  get  the 
verdict,  no  right-minded  court  will  refuse  him  a 
new  trial.  There  are  no  better  examples  for  his 
education  and  training  for  this  brilliant  feat  to  be 
found  in  the  whole  range  of  judic*  V"  proceedings, 
than  these  two  cross-examinations :  the  one  of 
Majocchi,  and  the  other  of  Demont.  I  rtgrvit  that 
I  have  not  the  space  to  give  them  fully.  The  stu- 
dent, however,  should  carefully  con  what  Denman 
has  call  i  "  two  great  masterpieces  of  ,  jrcnsic  skill," 
familiarizing  himself  with  all  of  the  questions  and 
answers  in  the  full  and  admirable  report  lately  made 
accessible  to  American  readers.' 

Again,  however,  we  must  remind  our  reader  that 
such  super-eminent  triumphs  are  but  seldom 
achieved.  They  occur  far  less  frequently  than  great 
speeches.  All  of  us  who  attend  the  courts  are  now 
and  then  delighted  with  a  burst  of  eloquence,  but 
we  may  haunt  them  for  years,  and  never  hear  a 
cross-examination  approach  even  faintly  to  either 
that  of  Majocchi  or  Demont. 

'Trial  of  Queen  Caroline  (New  York,  1874). 


CHAPTER  V. 

CROSS-EXAMINATION. 

{Co7ttinued^ 

I  HAVE  now  discussed  cross-examination  at 
length,  and  I  have  called  attention  to  what  I  deem 
the  leading  principles  of  good  cross-examination, 
(i)  The  lawyer  is  to  anticipate  as  much  as  he  can 
of  the  evidence  of  his  adversary,  and  meditate  for  it 
the  proper  sifting.  (2)  He  is  to  recollect  that  he  is 
by  no  means  to  attack  all  the  adverse  witnesses. 
He  will  succeed  by  turning  the  witness  into  one  of 
his  own,  nine  times  to  where  he  will  once  involve 
him  in  self-convicted  perjury.  (3)  And  when  he 
does  attack  the  witness  he  will  do  it  more  often  by 
leading  him  into  statements  which  will  be  disproved, 
than  by  making  him  contradict  himself.  Word- 
catching,  and  harping  on  trivial  inconsistencies, 
are  of  but  little  avail.  Cross-examination,  to  be  ef- 
fective, must  be  as  we  have  described  and  exemplified. 

I  will  now,  however,  for  all  of  the  length  of  the 
preA'ioiis  chapter,  run  through  with   Mr.  Cox's  sug- 


CROS'S-EXAMINA  HON.  289 

gcstions,  '  and  also  present  David  Paul  Brown's 
"  Golden  Rules,"  before  I  take  up  the  re-examination. 

Says  Mr.  Cox  :  "  There  are  two  styles  of  cross- 
examination,  both  of  which  you  may  see  exempli- 
fied in  any  court  where  you  may  chance  to  spend 
a  day,  and  which  we  may  term  the  savage  style,  and 
the  smiling  style.  The  aim  of  the  savage  style  is  to 
terrify  the  witness  into  telling  the  truth  ;  the  aim 
of  the  smiling  style  is  to  zvin  him  to  confession. 
The  former  is  by  far  the  most  frequently  in  use, 
especially  by  young  advocates  who  probably  imag- 
ine that  a  frown  and  a  fierce  voice  are  proofs  of 
power.  Great  is  their  mistake.  The  passions  rouse 
the  passions.  Anger,  real  or  assumed,  kindles  anger. 
An  attack  stimulates  to  defiance."  The  author  then 
proceeds  to  well  demonstrate  the  superiority  of  "  the 
smiling  style." 

He  lays  down  that  there  are  three  objects  of 
cross-examination.  "It  is  designed  either  to  destroy 
or  weaken  the  force  of  the  evidence  the  witness  has 
already  given  against  you,  or  to  elicit  something  in 
\> our  favor  which  he  has  not  stated,  or  to  discredit 
him  by  showing  to  the  jury  from  his  past  history  or 
present  demeanor  that  he  is  unworthy  of  belief. 
Never  should  you  enter  upon  the  cross-examination 
without  having  a  clear  purpose  to  pursue  one  or  all 
19  '  Adv.  375-434. 


290  CONDUCT    OF    LITIGATION. 

of  these  objects.     If  you  have  not  such,  keep  your 
seat." 

Our  author  then  considers  the   three  objects  of 
cross-examination : 

"  \sf.  To  desti^oy  or  weaken  the  force  of  his  tes- 
timony in  favor  of  the  other  side.  If  this  be  your 
design,  you  can  attain  it  only  by  one  of  two  pro- 
cesses. You  must  show  from  the  witness's  own  lips 
either  that  what  he  has  stated  is  false,  or  that  it  is 
capable  of  explanation.  If  your  opinion  be  that 
he  is  honest  but  prejudiced  ;  that  he  is  mistaken  ; 
that  he  has  formed  a  too  hasty  judgment,  and 
so  forth,  your  bearing  toward  him  can  not  be  too 
gentle,  kind,  and  conciliatory.  Approach  him  with 
a  smile,  encourage  him  with  a  cheering  word,  assure 
him  that  you  are  satisfied  that  he  intends  to  tell  the 
truth,  and  the  whole  truth,  and  having  thus  won  his 
good-will  and  confidence,  proceed  s'owly,  quietly, 
and  in  a  tone  as  conversational  as  possible,  to  your 
object.  Do  not  approach  it  too  suddenly,  or  you 
will  chance  to  frighten  him  with  that  which  forms 
the  great  impediment  to  the  discovery  of  t':e  truth 
from  witnesses,  the  dread  of  appearing  to  contradict 
themselves.  If  once  this  alarm  be  kin  led,  it  is 
extremely  difficult  to  procure  plain,  unequivocal 
answers.  The  witness  f  rthwith  places  himself  on 
the  defensive,  and   deeming  yo  i  an   eneny,  fenc  ;s 


CROSS-RXAMIA'A  TION.  291 

with  you,  with  more  or  less  of  skill,  certainly,  but 
always  to  the  weakening"  of  whatever  may  drop 
from  him  in  your  favor.  With  such  a  witness  of 
whose  candor  you  are  seeking  to  avail  yourself,  the 
better  course  is  to  begin  with  the  beginning  of  the 
story  he  has  told,  and  conduct  him  through  it  again 
in  the  same  order,  only  introducing  at  the  right 
places  the  questions  which  are  intended  to  explain 
or  qualify  what  he  has  stated  in  his  examination-in- 
chief  The  advantage  of  this  course  consists  in  its 
avoidance  of  any  appearance  of  a  surprise  upon 
him.  You  take  him  into  his  former  track,  you  even 
make  him  repeat  a  portion  of  what  he  has  said, 
before  you  recall  his  mind  from  the  court  and  from 
yourself  to  the  subject  with  which  it  is  familiar. 
The  scene  is  again  before  him,  occupying  his 
thoughts.  Then  it  is  easy  to  try  him  upon  the  de- 
tails (but  still  gently),  to  suggest  whether  it  may  not 
have  differed  by  so  and  so  from  that  which  he  has 
described,  or  if  so  and  so  (which  gives  to  the  trans- 
action another  complexion),  did  not  occur  also  ;  and 
thus  at  more  or  less  length,  according  to  the  circum- 
stances of  the  case." 

The  next  passage  deprecates,  with  justice,  any 
exhibition  of  emotion  in  the  examiner  at  any  of  the 
answers,  after  which  the  author  proceeds  : 

"  In  the  same  manner  you  may  carry  him  to  the 


292  CONDUCT    OF    LITIGATION. 

conclusion  of  his  story,  and  what  with  an  explana- 
tion of  one  fact,  an  addition  to  another,  and  a 
toning  down  of  the  color  of  the  whole,  the  evidence 
will  ?jsually  appear  in  a  very  different  aspect  after 
a  JLiaicious  cross-examination,  from  that  which  it 
wore  at  the  close  of  the  examination-in-chief." 

"  If  you  suspect  that  some  of  the  statements  of  the 
witness  are  false  in  fact,  although  not  ivillfully  mis- 
stated— errors  of  the  senses,  of  the  imagination,  of  the 
memory,  so  much  more  frequent  than  they  might 
suppose,  whose  occupation  it  had  not  been  to  sift  and 
weigh  the  worth  of  evidence — your  task  becomes  a 
very  difficult  one  :  for  without  in  any  manner  charg- 
ing him  with  perjury,  or  desiring  to  have  it  under- 
stood that  you  do  otherwise  than  believe  him  to  be 
an  honest  witness,  you  have  to  prevail  upon  him  to 
confess  that  which  will  wear  the  aspect  of  falsehood. 
Now  there  is  nothing  upon  which  witnesses  of  every 
grade  of  rank  and  intellect  are  so  sensitive  as  sclf- 
contradictioji.  They  suspect  your  purpose  instantly, 
and  the  dread  of  being  made  to  appear  as  lying,  while 
often  producing  contradictions  and  evasions,  more 
often  arms  the  resolution  of  the  witness  to  adhere  to 
his  original  statement  without  qualification  or  expla- 
nation. When,  therefore,  it  is  your  purpose  to  show 
from  the  witness's  own  lips  that  he   was  mistaken. 


CROSS-EXAMINA  TION.  293 

the  cxtrcmest  caution  is  required  in  approaching 
him.  .  .  •.  .  Be  careful  not  to  frighten  him  by 
point-blank  questions  that  go  at  once  to  involve  him 
in  contradictions,  or  he  will  see  your  design  and 
thwart  it  b}  a  resolute  adhesion  to  his  first  assertion. 
You  must  approach  the  object  under  cover,  open- 
ing with  some  questions  that  relate  to  another 
matter,  and  then  gradually  coming  round  to  the 
desired  point.  And  even  when  you  have  neared  it, 
you  must  endeavor  by  every  device  your  ingenuity 
can  suggest  to  avoi  1  the  direct  question,  the  answer 
to  which  necessarily  and  obviously  involves  the 
contradiction.  The  safer  and  surer  course  is  to 
bring  out  the  discrepancy  by  inference,  —  that  is, 
instead  of  seeking  to  make  the  witness  unsay  what 
he  has  said,  it  should  be  your  aim  to  elicit  a  state- 
ment which  may  be  shown  by  argument  to  be  mcon- 
sistent  with  the  former  statement." 

"  An  exphntation  of  the  statement  of  a  witness 
is  not  so  difficult  to  be  procured  from  him  as  is  a 
contradiction  ;  because  there  is  not  the  same  formi- 
dable fear  of  being  presented  to  the  court  in  the 
aspect  of  one  who  is  perjured.  A  witness  who  is 
conscious  that  he  has  been  induced  by  the  encour- 
aging examination  of  his  own  counsel,  to  say  too 
much,   is  often    ready    to  seize  the    opportunity  af 


294  CONDUCT     OF    LITIGATION. 

forded  by  the  cross-examination  to  modify  his  asscr 
tions  by  qualifications  and  explanations.".  Here  the 
witness  is  to  be  encouraged.  "  Having  obtained 
enough  for  your  purpose,  pass  on.  You  may  obtain 
too  much.  There  is  no  more  useful  faculty  in  the 
practice  of  an  advocate  than  to  know  when  he  has 
done  enough.  Many  more  causes  arc  lost  by  saying 
too  much  than  by  not  saying  sufficient.  A  chapter 
may  not  uselessly  be  devoted  hereafter,  to  the 
inquiry,  '  When  to  sit  dozun  ?  ' " 

This  last  caution  is  -vise.  The  cross-examiner 
sometimes  draws  great  discomfiture  on  himself. 
The  following  is  told  of  the  late  Mr.  Ciioate 
occurring  "  in  the  trial  of  a  question  of  salvage. 
It  was  the  case  of  The  Missou7'i,  an  American 
vessel  stranded  on  the  coast  of  Sumatra,  with  specie 
on  board.  The  master  of  the  stranded  vessel,  one 
Dixey,  and  Pitman,  the  master  of  the  vessel  that 
came  to  her  aid,  agreed  together  to  embezzle  the 
greater  part  of  the  specie,  and  pretend  that  they 
had  been  robbed  of  it  by  the  Malays.  Mr.  Ciioate 
was  cross-examining  Dixey  very  closely,  to  get  out 
of  him  the  exact  time  and  nature  of  the  agreement. 
The  witness  said  that  Pitman  proposed  the  scheme, 
and  that  he  objected  to  it,  among  other  reasons,  as 
dangerous.  To  which  he  said  Pitman  made  a  sug- 
gestion intended  to   satisfy  him.     Mr.  Choate  in- 


CROSS-EXAMINA  TION.  29'; 

sistcd  on  knowing  what  that  suggestion  was.  The 
witness  objected  to  giving  it.  Mr.  Choate  was 
peremptory,  and  the  scene  became  interesting. 
'  Well;  said  Dixey,  at  last, '  if  you  must  know,  he 
said  that  if  any  trouble  came  of  it,  we  could  have 
RuFus  Choate  to  defend  us,  and  he  would  get  us 
off  if  we  were  caught  with  the  money  in  our  boots. 
It  was  several  minutes  before  the  court  could  go  on 
with  the  business." ' 

But  we  will  return  to  Mr.  Cox  : 

"  The  second  object  of  cross-examination  is  to 
elicit  something  in  yoicr  favor.  The  method  of 
doing  this  will  depend  upon  the  character  of  the 
witness.  If  you  believe  him  to  be  honest  and 
truthful,  you  may  proceed  directly  to  the  subject- 
matter  of  your  inquiry  with  plain,  point-blank 
questions.  If  you  suspect  that  he  will  not  readily 
state  what  he  is  aware  will  operate  in  your  favor 
and  against  his  own  friends,  you  must  approach  him 
with  some  of  the  precautions  requisite  for  the  cross- 
examination  of  a  witness  who  is  not  altogether 
trustworthy. 

"  It  may  be  remarked  here  that  good   general- 
ship may  be  often  shown  in  skillfully  availing  your- 
self   of     the  silence     of    a   witness.      A   refusal   to 
'Brown's  Life,  421. 


296  CONDUCT    OF    LITIGATION. 

answer,  or  an  evasion  of  your  question,  will  fre- 
quently be  more  serviceable  to  you  than  his  words." 
We  have  now  followed  Mr.  Cox  to  the  last 
object  of  cross-examination,  which  is  to  discredit 
the  witness,  and,  in  most  cases,  to  convict  him  of  a 
mistake  instead  of  perjury.  "  Now,  the  way  to  do 
this,  is  by  closely  inquiring  into  the  so2trccs  of  his 
knowledge^ 

"The  witness  has  detailed  an  occurrence  at  a 
certain  time  and  place,  and  it  is  your  purpose  to 
show  that  he  was  mistaken  in  some  of  the  particu- 
lars, and  that  the  inferences  he  drew  from  them  were 
incorrect,  or  not  justified  by  the  facts.  Your  first 
proceeding  to  this  end  is  to  realize  the  scene  in  your 
own  mind.  Your  fancy  must  paint  for  you  a  picture 
of  the  place,  the  persons,  the  accessories.  You 
then  ask  the  witness  to  repeat  his  story, — you  note 
its  congruity,  or  otherwise,  with  the  circumstances 
that  accompanied  it ;  you  detect  improbabilities  or 
impossibilities.  You  see  as  he  saw,  and  you  learn 
in  what  particulars  he  saw  imperfectly,  and  how  he 
formed  too  hasty  conclusions ;  how  prejudice  may 
have  influenced  him  ;  how  things  dimly  seLui  were 
by  the  imagination  transformed  into  other  things  in 
his  memory. 

"  How  erring  the  senses  are,  and  how  much  ll.cii 


CROSS-EXAMINA  TION.  297 

impressions  are  afterwards  moulded  by  the  mind  ; 
how  very  fallible  is  information  seemingly  the  most 
assured,  it  needs  no  extensive  observation  to  teach. 
If  you  make  inquiry  as  to  an  occurrence  in  the 
next  street  ten  minutes  after  it  has  happened,  and 
from  half-a-dozen  actual  spectators  of  it,  you  will 
receive  so  many  different  accounts  of  its  details, 
and  yet  each  one  positive  as  to  the  truth  of  his 
own  narrative,  and  the  error  of  his  neighbor's. 

"  But  it  is  not  enough  to  ascertain  that  the  wit- 
ness is  mistakeii ;  to  satisfy  the  jury  when  you 
come  to  comment  upon  his  evidence,  you  must 
learn  also  whence  the  mistake  arose,  and  you  should 
not  leave  him  until  you  have  attained  your  object." 

Next  our  author  treats  of  the  cross-examination 
of  a  witness  whom  you  have  good  reason  to  believe 
is  lying,  and  whom  you  would  convict  out  of  his 
own  mouth,  and  he  says : 

"  The  question  has  often  occurred  to  us,  whether 
It  is  more  prudent  to  show  such  a  witness  that  you 
suspect  him,  or  to  conceal  your  doubts  of  his  hon- 
esty. Either  course  has  its  advantages  and  disad- 
vantages. By  displaying  your  doubts,  you  incur  the 
risk  of  putting  him  upon  his  guard,  and  leading 
1  im  to  be  more  positive  in  his  assertions,  and  more 
circumspect  in  his  answers  ;  but,  on  the  other  hand 


298  CONDUCT    OF    LITIGATION 

a  conscious  liar  is  almost  always  a  moral  coward ; 
when  he  sees  that  he  is  detected,  he  can  rarelv 
muster  courage  to  do  more  than  reiterate  his  asser- 
tion ;  he  has  not  presence  of  mind  to  carry  out  the 
story  by  ingenious  invention  of  details,  and  a  con- 
sistent narrative  of  accidental  circumstances  con- 
nected with  it.  .  .  .  Perhaps  either  course  might 
be  adopted,  according  to  the  character  of  the 
witness.  If  he  is  a  cool,  clever  fellow^  it  may  be 
more  prudent  to  conceal  from  him  your  doubts  of 
his  veracity  until  he  has  furnished  you  with  proofs. 
If  he  is  one  of  that  numerous  class  who  merely  get 
up  a  story  to  which  they  doggedly  adhere,  it  may 
be  wise  to  awe  him  at  once  by  notice  that  you  do 
not  believe  him,  and  that  you  do  not  intend  to  spare 
him.  We  have  often  seen  such  a  witness  surrender 
at  discretion  on  the  first  intimation  of  such  an 
ordeal.  This  is  one  of  the  arts  of  advocacy  which 
can  not  be  taught  by  anything  but  experience.  It  is 
to  be  learned  only  by  the  language  of  the  eye,  the 
countenance,  the  tones  of  the  voice  that  betray  to 
the  practiced  observer  what  is  passing  through  the 
mind  within." 

We  extract  the  following  excellent  example  of  a 
witness  subverted  by  patient  approach  : 

"  In  a  case  of  affiliation  of  a  bastard  child,  the 
mother  had   sworn  distinctly  and  positively  to  the 


CROSS-EXAMINA  TION.  299 

person  of  the  father,  and  to  the  time  and  phice  of 
their  acquaintance,  fixed  as  usual  at  precisely  the 
proper  period  before  the  birth  of  the  child.  In  this 
case  the  time  sworn  to  was  the  piiddle  of  May,  and 
the  place  the  putative  father's  garden.  For  an 
hour  she  endured  the  strictest  cross-examination 
that  ingenuity  could  suggest ;  she  was  not  to  be 
shaken  in  any  material  part  of  her  story  ;  she  had 
learned  it  well,  and  with  the  persistence  that  makes 
women  such  difficult  witnesses  to  defeat,  she 
adhered  to  it.  It  suddenly  occurred  to  us  that  she 
might  be  thrown  off  her  guard  by  a  question  for 
which  she  was  not  likely  to  be  prepared,  and  the 
examination  proceeded  thus  :  '  You  say  you  walked 
in  the  garden  with  Mr.  M  .? '  '  Yes.'  '  Before 
your  connection  with  him  } '  *  Yes.'  *  More  than 
once  } '  '  Yes  ;  several  times.'  '  Did  you  do  so 
afterwards.?'  'No.'  'Never  once.?'  'No.'  'Is 
there  fruit  in  the  garden  .?'  '  Yes.'  '  I  suppose  you 
were  not  allowed  to  pick  any.?'  '  Oh,  yes,  he  used 
to  give  me  some.'  '  What  fruit .? '  '  Currants  and 
raspberries,'  'Ripe.?'  'Yes.'  This  was  enough. 
She  was  detected  at  once.  The  alleged  intercourse 
was  in  the  middle  of  May.  Currants  and  raspberries 
are  not  ripe  till  June.'* 

The  rest  of  Mr.  Cox's  chapter  is  instructive  and 
entertaining,  but  I  will  not  repeat  it  here,  as  it  gives, 


300  CONDUCT    OF   LITIGATION. 

in  my  opinion,  too  great  prominence  to  that  part  of 
the  cross-examination  which  is  intended  to  make  the 
witness  contradict  himself.  Of  course  the  lawyer  must 
master  the  subject,  but  he  must  understand  that 
cross-examination  is  generally  as  much  overrated  as 
advocacy.  I  can  not  agree  with  the  author  who 
concludes  his  chapter  by  saying,  that  "  there  is  never 
a  cause  contested,  the  result  of  which  is  not  mainly 
dependent  npon  the  skill  zvith  zvhich  the  advocate 
conducts  his  cross-examination^ 

No  man  can  tell  a  long  story  with  complete 
consistency.  A  skillful  cross-examiner  can  detect 
in  the  most  credible  testimony,  trivial  conflicts  which 
do  not  weigh  much.  Witnesses  stand  at  last  on 
their  characters.  The  man  who  is  reckless  or  care- 
less of  the  truth,  or  of  bad  character,  is  known  as 
such.  This  man,  if  not  telling  the  truth,  can  be  put 
down  when  he  is  turned  over  to  the  opposite 
counsel.  But  the  jury  will  only  be  irritated  at  a 
persistent  attack  on  the  testimony  of  a  witness  of 
good  standing.  Let  the  cross-examiner,  therefore, 
attend  mostly  to  one  thing,  not  at  all  mentioned  by 
Mr.  Cox— the  character  of  every  witness. 

Having  exhausted  Mr.  Cox,  I  will  now  give  the 
"  Golden  Rules  "  of  David  Paul  Brown  for  cross- 
examination  : 

''First. — Except    in    indifferent    matters    never 

*  Forum,  Ixxvii.  ct  scq. 


CR0SS-EXA3f!NA  TION.  301 

take  your  eye  from  that  of  the  witness.  This  is  a 
channel  of  communication  from  mind  to  mind,  the 
loss  of  which  nothing  can  compensate. 

*  Truth,  falsehood,  hatred,  anger,  scorn,  despair, 
And  all  the  passions — all  the  soul  is  there.' 

"  Second. — Be  not  regardless,  either,  of  the  voice 
of  the  witness  ;  next  to  the  eye,  this  is  perhaps  the 
best  interpreter  of  his  mind.  The  very  design  to 
screen  conscience  from  crime,  the  mental  reservation 
of  the  witness,  is  often  manifested  in  the  tone  01 
accent,  or  emphasis  of  the  voice.  For  instance,  it 
becoming  important  to  know  that  the  witness  was  at 
the  corner  of  Sixth  and  Chestnut  streets  at  a  certain 
time,  the  question  is  asked,  '  Were  you  at  the  corner 
of  Sixth  and  Chestnut  streets  at  six  o'clock  ? '  A 
frank  w^itness  would  answer,  perhaps,  '  I  was  near 
there.'  But  a  witness  who  is  desirous  to  conceal  the 
fact,  and  defeat  your  object  (speaking  to  the  letter 
rather  than  to  the  spirit  of  the  inquiry),  answers. 
'  No ;'  although  he  may  have  been  within  a  stone's- 
throw  of  the  place,  or  at  the  very  place  within  ten 
minutes  of  the  time.  The  common  answer  of  such 
a  Vv^itness  would  be,  '  I  was  not  at  the  cor?zer  at 
six  o'clock.'  Emphasis  upon  both  words  plainly 
implies  a  mental  evasion  or  equivocation,  and  gives 
rise  with  a  skillful  examiner  to  the  question,  '  At 
what  hour  were  you  at  the  corner  }  or  at  what  place 


302  CONDUCT    OF    LITIGATION. 

where  you  at  six  o'clock  ?  '  And  in  nine  instances 
out  of  ten,  it  will  appear  that  the  witness  was  at  the 
place  about  the  time,  or  at  the  time  about  the 
place.  There  is  no  scope  for  further  illustrations ; 
but  be  watchful,  I  say,  of  the  voice,  and  the  princij  le 
may  be  easily  applied. 

•"  Third. — Be  mild  with  the  mild  —  shrewd  with 
the  crafty  —  confiding  with  the  honest  —  merciful  to 
the  young,  the  frail,  or  the  fearful  —  rough  to  the 
ruffian  —  and  a  thunderbolt  to  the  liar.  But  in  all 
this  never  be  unmindful  of  your  own  dignity. 
Bring  to  bear  all  the  powers  of  your  mind,  not  that 
you  may  shine,  but  that  virtue  may  triumph  and 
your  cause  may  prosper. 

"  Fourth. — In  a  criminal,  especially  in  a  capital 
case,  so  long  as  your  cause  stands  well,  ask  but  few 
questions,  and  be  certain  never  to  ask  any  the  an- 
swers to  which  (if  against  you)  may  destroy  your 
client,  unless  you  know  the  witness  perfectly  well, 
and  know  that  his  answer  will  be  favorable  equally 
well  ;  or  unless  you  be  prepared  with  testimony  to 
destroy  him,  if  he  play  traitor  to  the  truth  and  your 
expectations. 

"  Fifth. — An  equivocal  question  is  almost  as 
much  to  be  avoided  and  condemned  as  an  equivocal 
answer.  Singleness  of  purpose,  clearly  expressed,  is 
the  best  trait  in  the  examination  of  witnesses,  whether 


CROSSEXAIillNA  ffCN.  303 

they  be  honest  or  the  reverse.  Falsehood  is  not 
detected  by  cunning,  but  by  the  Hght  of  truth,  or  ii 
by  cunning  it  is  the  cunning  of  the  witness,  and  not 
of  the  counsel. 

''Sixth. — If  the  witness  determine  to  be  witty 
or  refractory  with  you,  you  had  better  settle  that 
account  with  him  at  first,  or  its  items  will  increase 
with  the  examination.  Let  him  have  an  opportu- 
nity of  satisfying  himself  either  that  he  has  mis- 
taken your  power  or  his  own.  But  in  any  result  be 
careful  that  you  do  not  lose  your  temper.  Anger  is 
always  the  precursor  or  evidence  of  assured  defeat 
in  any  intellectual  conflict. 

"  Seventh. — Like  a  skillful  chess-player,  in  every 
move  fix  your  mind  upon  the  combinations  and 
relations  of  the  game  ;  partial  and  temporary  success 
may  otherwise  end  in  total  and  remediless  defeat. 

"  Eighth. — Never  undervalue  your  adversary, 
but  stand  steadily  upon  your  guard.  A  random 
blow  may  be  just  as  fatal  as  though  it  was  directed 
by  the  most  consummate  skill — the  negligence  of 
one  often  cures,  and  sometimes  renders  effective,  the 
blunders  of  another. 

''Ninth. — Be  respectful  to  the  court  and  the 
jury  ;  kind  to  your  colleague ;  civil  to  your  antag- 
onist ;  but  never  sacrifice  the  slightest  principle  of 
duty  to  an  overweening  deference  toward  either." 


304  CONDUCT    OF    LITIGATION. 

The  Rules  which  we  have  just  quoted  arc  not  as 
striking  as  those  of  the  same  author  for  the  examin- 
ation-in-chief.  Still  they  deserve  attention  as  the 
production  of  a  very  able  Nisi  Prius  law)''er  of 
great  experience.  Besides  the  wisdom  of  nearly  all 
of  the  "  Golden  Rules,"  both  for  direct  and  cross- 
examination,  their  epigrammatic  polish,  energy,  and 
freshness,  are  a  most  grateful  contrast  with  the  or- 
dinary dullness  of  law-writing. 

We  will  add  a  few  counsels,  and  then  we  shall 
close  the  subject  of  Cross-Examination,  which  we 
have  not,  however,  discussed  at  too  great  length. 

And  we  will  say  first  that  no  part  of  procedure 
demands  such  constant  application  of  true  principle 
as  cross-examination.  The  good  cross-examiner  is 
made.  He  may  be  born  with  an  adapted  talent, 
but  he  can  not  attain  excellence  without  much  train- 
ing and  experience.  The  lawyer  who  does  not 
understand  the  subject  is  seen  perpetually  arguing, 
or  expostulating,  or  quarreling,  with  the  adverse 
witness,  or  catching  at  inconsistencies  merely  verbal, 
or  otherwise  too  trivial  to  be  considered,  thus  irrita- 
ting court  and  juiy  into  opposition  to  his  case. 

We  must  remind  the  lawyer  that  he  should 
prevent  his  witness  from  making  improper  disclos- 
ures while  under  cross-examination.  The  court  will 
generally  protect  the  witness,  but  it  is  your  duty 


CROSS-EXAMINA  TION.  305 

not  to  wait  for  the  court.  And  you  should  also  see 
that  he  is  treated  with  proper  consideration,  and 
especially  that  words  which  he  did  not  say  in  the 
direct  examination  are  not  put  in  his  mouth.  We 
sometimes  hear  a  counsel  cross-examining  say  to  a 

witness,  "  Well,  Mr. ,  you  have  testified  so  and 

so,"  when,  in  fact,  the  witness  has  not  so  testified. 
This  is  as  discreditable  as  the  trick  of  suggesting 
under  some  pretext  of  objection  or  correction  to 
your  witness,  when  pused  in  a  cross-examination,  a 
desired  answer. 

I  subjoin  a  passage  from  an  entertaining  book 
which  shows  how  a  witness  protected  himself  where 
counsel  would  not  interfere  against  an  improper 
cross-examination.  That  it  may  be  all  fiction,  makes 
it  none  the  less  instructive.  The  reader  will  recol- 
lect that  the  author  speaks  in  the  character  of  an 
English  attorney : 

"  I  was  under  the  fire  of  a  cross-examination  by 

Scarlett — no  very  enviable  position  even  for  the  most 

honest  witness,  it  must  be  owned.     An    important 

letter  had  been  lost  in  my  office  ;  lost  by  that  excess 

of  precaution  which  one  sometimes  takes  with  very 

important  documents.     I  had  locked  it  up  in  some 

drawer  for  security,  and  on  the  eve  of  trial  could  not 

discover  where  I  had  placed  it;  but  when  engaged 

in   consulting   counsel    on    the  case  before  I    com- 
20 


3o6  CONDUCT    OF    LITIGATION. 

menced  the  action,  nearly  three  years  before  the 
case  was  tried,  I  had  introduced  a  copy  of  this  letter 
into  the  statement,  and  had  read  the  letter  to  my 
clerk  while  he  transcribed  it.  I  tendered  the  copy 
in  evidence :  of  course  Scarlett  opposed  its  admis- 
sion, for  nearly  the  whole  question  of  damages 
turned  upon  it. 

" '  Do  you  commonly  read  letters  for  your  clerks 
to  copy,  Mr.  Sharpe  }  ' 

" '  No,  sir.' 

'"  It  would  be  rather  an  inconvenient  practice  .r** 

"'Certainly.' 

'"  Did  you  examine  this  copy  after  he  had  made 
it.?' 

"  '  Not  that  I  remember ;  certainly  not  to  check 
its  accuracy.' 

"  '  Then  you  can  not  swear  to  its  accuracy  } ' 

" '  I  can  not ;  but  I  believe  it  to  be  accurate.' 

"'Why.?' 

"  *  Because  it  consists  of  but  five  lines,  so  there  is 
not  much  room  for  error  ;  and  I  had  every  induce- 
ment to  be  accurate  in  consulting  counsel  on  the 
merits  of  my  client's  case.' 

" '  Did  you  show  the  original  letter  to  your 
counsel .? ' 

" '  Most  likely  I  did.  I  can  not  be  certam  at 
this  distance  of  time,  but  I  have  no  doubt  I  did.' 


CROSS-EX  A  miN A  TION.  307 

"'Then  you  did  not  at  that  time  rely  sufficiently 
on  your  belief  in  its  accuracy,  to  trust  to  the  topy 
only  ?  ' 

"  I  saw  the  drift  of  the  question  and  hesitated 
of  course.     I  received  the  usual  rough  salute. 

"'No  hesitation,  sir;  did  you  then  believe  the 
copy  to  be  accurate  } ' 

"  I  still  demurred  repeating  the  question,  but  not 
ansv/ering. 

"  '  Come  sir  !  no  fencing  with  me  ;  as  an  attor- 
ney, you  ought  to  know  better.' 

"  I  remained  silent,  pondering  over  the  question. 

" '  I  zuill  have  an  answer,  sir.  Did  you  the?i  be- 
lieve the  copy  to  be  faithful' 

" '  To  what  time  do  you  refer  ?  ' 

" '  When  you  consulted  counsel.' 

"  '  Three  years  ago  } ' 

"  *  Yes,  sir ;  three  years  ago.' 

"'Then  I  will  not  answer  your  question,  unless 
his  lordship  decides  against  me.' 

"  My  own  counsel  ought  to  have  made  the  ob- 
jection, but  from  discretion  sometimes  they  are  too 
tardy  in  protecting  a  witness.  Lord  Denman,  how- 
ever (who  knew  me  well,  and  from  whom  I  never 
but  once  received  a  harsh  word,  and  even  then  I 
believed  he  designed  it  kindly,  though  it  was  unjust) 
came  to  my  aid. 


3o8  CONDUCT    OF    LIT IG AT  I  ON. 

"  '  What  is  your  objection,  Mr.  Sharpe  ?' 
"  ''Your  lordship  will  perceive  that  the  question 
does  not  refer  to  present  belief,  nor  to  a  past  fact, 
but  to  the  impression  resting  on  my  mind  three  years 
ago  ;  how  is  it  possible  for  any  man  to  state  with 
certainty  the  precise  limits  of  his  belief,  not  as  to 
what  were  the  occurrences  of  to-day,  or  yesterday, 
but  as  to  what  he  believed  at  a  period  so  remote  ?  ' 
"  His  lordship  reflected  for  a  moment,  and  over- 
ruled the  question. 

"  '  It  is  not  a  fair  one,  Mr.  Scarlett.     Go  on.' 
"  But  Scarlett  had  had  enough  of  it,  and  left  me 
to  gain  a  verdict  without  further  interruption,  though 
he  looked  as  if  he  could   have  eaten   me,  however 
accustomed  to  fare  so  tough,"  ' 

'  Adventures  of  an  Attorney  in  Search  of  Practice,  245- 
'?48.     (New  York,  1874.) 

I  have  just  learned  that  there  is  now  serious  controversy 
over  the  authorship  of  this  book,  many  claiming  it  for  Sir 
George  Stephen,  while  many  others  contend  that  it  should 
be  given  to  Mr.  Warren,  as  it  is  on  the  title-page  of  the  edi- 
tion cited.  I  regret  that  the  foregoing  pages,  in  which  I  have 
asserted  the  Adventures  to  be  Mr.  Warren's,  are  beyond  my 
power  to  correct.  I  recall  that  assertion.  I  can  not  settle 
the  controversy.  The  name  of  either  one  of  the  alleged 
authors,  and  its  owr  merit,  are  enough  to  entitle  the  produc- 
tion to  attention. 


CHAPTER   VI. 

RE-EXAMINATION. CONCLUSION      OF       THE      CONDUCT 

OF    THE    EVIDENCE. 

Having  stayed  so  long  with  Cross-Examination 
we  will  now  proceed  to  discuss  Re-Examination. 
Mr.  Cox  opens  his  chapter'  with  a  passage  interest- 
ing to  the  American  lawyer : 

"The  cross-examination  being  closed,  the  duty 
of  Re-Examination  devolves  upon  the  counsel  on 
the  other  side.  It  is  usually  undertaken  by  the 
leadci'-,  even  although  the  examination-in-chief 
had  been  conducted  by  the  junior,  probably  because 
it  is  supposed  to  require  the  skill  and  caution  which 
only  experience  can  teach.  You  will  remember 
that  cross-examination  is  in  like  manner  and  for  the 
same  reason  conducted  by  the  leader  as  a  matter  of 
course,  unless,  as  sometimes  is  the  case  when  the 
witness  is  unimportant,  or  he  has  great  confidence 
in  his  junior's  ability  and  prudence,  he  requests  you 
to  undeitake  the  task.  Then,  and  only  then,  have 
you  an  opportunity  of  practicing  the  lessons  you 
may  have  learned." 

'  I  Adv.  435 


310  CONDUCT    OF    LITIGATION. 

The  general  rule  in  our  practice  is  that  the 
counsel  who  examined-in-chief  conducts  the  re- 
examination. Other  things  being  equal,  that  coun- 
sel should  conduct  the  examination  who  is  best  ac- 
quainted beforehand  with  the  testimony  of  the  witness. 

The  object  of  re-examination,  according  to  Mr. 
Cox,  "  is  simply  to  obtain  from  the  witness  an  ex^ 
planation  of  that  which  he  had  said  in  cross- 
examination.  The  necessity  for  giving  to  a  witness 
such  an  opportunity,  proceeds  from  the  system 
adopted  in  our  courts  of  eliciting  evidence  by  means 
of  questions.  A  witness  does  not  tell  his  story 
without  interruption,  as  is  the  practice  in  most 
of  the  law  courts  on  the  continent,  but  is  required 
to  answer  the  questions  of  counsel,  and  seldom 
permitted  to  do  more,  or  to  accompany  his  answer 
with  an  explanation.  A  skillful  advocate  in  his 
cross-examination  avails  him.self  of  this  to  obtain 
such  answers  only  as  suit  his  purpose,  excluding  the 
explanations  that  might  give  them  another  mean- 
ing. It  is  the  duty  of  the  advocate  on  the  other 
side  to  note  such  replies,  and  on  re-examination,  to 
give  to  his  witness  the  opportunity  for  explanation 
denied  to  him  before." 

We  have  said  that  one  purpose  of  a  cross- 
examination  was  to  avoid  the  garbling  of  the  testi- 
mony that  could  always  be  ingeniously  done  on  the 


RE-EX  A  AIINA  TION.  3 1 1 

examination-in-chief.  And  the  great  reason  of  the 
re-examination  is  to  prevent  a  Hke  garbhng  by  the 
cross-examining  counsel.  The  cross-examination 
can  not  only  deeply  probe  the  witness  as  to  his 
feelings,  his  bias,  his  means  of  knowledge,  but  it  can 
also  elicit  from  him  independent  facts  favorable  to 
the  examiner.  And  by  reason  of  the  right  of  the 
counsel  to  confine  the  witness  to  answer  the  ques- 
tions, and  permit  him  to  give  nothing  else,  only  a 
portion  of  the  truth  may  be  so  presented  as  to 
impart  falsehood.  Thus  a  witness  who  has  testified 
on  the  direct  examination  to  an  occurrence,  may  be 
asked  on  the  cross  if  it  were  not  night,  and  answer- 
ing affirmatively,  he  may  stand  somewhat  discred- 
ited until  the  re-examination  draws  out  that  there 
was  a  good  light,  by  which  he  could  see  clearly. 
Again,  to  apply  differently  an  example  already 
given,  an  item  of  indebtedness  of  the  plaintiff  to 
the  defendant,  pleaded  as  a  set-off,  may  be  proven 
by  the  witness  testifying  under  cross-examination 
to  an  admission  of  such  indebtedness  by  the  plain- 
tiff, but  the  re-examination  may  relieve,  by  making 
the  witness  testify  that  the  plaintiff  at  the  time  of 
the  admission  asserted  the  debt  to  be  a  gaming  one, 
or  one  otherwise  illegal. 

The  privilege  of  re-examination  is  all   the  more 
necessary,  because  of  the  right  of  the  cross-examiner 


312  CONDUCT    OF    LITIGATION. 

to  frame  his  questions,  so  that  the  witness  can  reply 
only  yes  or  no. 

But  the  re-examination  guards  against  other 
abuses.  The  witness  from  bewilderment  or  heed- 
lessness may  have  under  the  cross-examination 
made  inaccurate  statements  which,  as  they  damage 
your  cause,  you  must  correct. 

And  the  great  prompter  and  fountain  of  a 
judicious  re-examination  is  that  which  rightly  in- 
forms the  direct  and  the  cross — familiarity  with  the 
narrative  of  the  witness.  If  he  is  important,  —  if  life 
or  Uberty,  or  reputation,  or  fortune  hang  on  his  tes- 
timony,— how  can  you  excuse  yourself  to  your  client 
if  you  have  not  heard  him  over  and  over,  until  you 
have  so  mastered  his  evidence,  that  even  the 
shrewdest  cross-examiner  can  neither  garble  nor 
discredit,  provided  that  the  witness  be  honest. 

The  following,  narrated  of  a  great  lawyer,  is 
aptly  illustrative  :  "  It  was  in  taking  this  timid  and 
reluctant  witness  into  his  own  hands,  and  bringing 
him  to  feel  that  he  was  testifying,  under  the  shelter 
of  the  great  *  Defender '  himself,  that  Mr.  Webster, 
figured  more  conspicuously  than  in  any  other  part 
of  the  case.  Thus  borne  up  and  through  a  long 
direct  examination,  he  braved  the  cross-examination 
with  perfect  composure."  '  The  great  Defender 
^  Brown's  Life  of  Choate,  173. 


RE-EX  A  MINA  TION.  3 1 3 

understood  his  witness,  and  understood  this  witness's 
testimony.  It  is  not  told  us,  but  we  may  safely  take 
it  for  granted,  that  Mr.  Webster  had  heard  him  in 
the  consultation-room  with  patience,  from  begin- 
ninc:  to  end.  Know  the  witness  —  know  his  evi- 
dence,  and  you  can  deliver  him,  if  honest,  from  any 
toils  of  cross-examination,  and  even  strengthen  him 
for  the  ordeal  before  he  undergoes  it.  We  have  in 
the  preceding  Book  insisted  on  this  previously  ac- 
quired knowledge,  this  fit  preparation.  Mr.  Cox 
does  not  speak  of  it.  It  is  true,  that  his  book 
shows  that  the  attorney  (not  the  counsel)  is  ex- 
pected to  come  to  the  trial  familiarized  with  his 
testimony  by  conference  with  the  witness  —  but  the 
counsel  has  no  previous  knowledge,  save  the  state- 
ments in  the  brief,  which  are  but  the  report  of  the 
attorney.  But  we  will  return  now  to  what  Mr.  Cox 
says  of  re-examination  : 

"  Your  notes  of  the  cross-examination  before  you, 
the  work  commences.  It  is  a  rule  that  you  shall 
strictly  confine  yourself  to  matters  that  have  been 
mooted  in  the  cross-examination.  You  are  not  per- 
mitted to  go  into  new  matter.  This  is  the  only 
restriction,  for  if  the  subject  has  been  touched  upon, 
however  slightly,  by  your  adversary,  yon  are  entitled 
to  go  fully  into  it,  and  hence  it  is  that  a  skillful 
advocate  is  commonly  enabled  to   make  such  good 


314  CONDUCT    OF    LITIGATION. 

use  of  the  opportunity,  for  a  cross-examination  rarely 
omits  to  deal  more  or  less  with  all  the  most  impor- 
tant portions  of  a  witness's  testimony. 

.  .  "  Your  caution  will  rather  be  required 
in  the  way  of  restraint.  Great  care  must  be  taken 
lest  you  seek  explanations  where  none  can  be  given, 
for  thus  you  would  certainly  do  yourself  an  injury 
by  recalling  the  damaging  answer,  and  making  it 
doubly  impressive  by  reiteration." 

I  would  remind  the  counsel  that  if  he  has  con- 
ferred with  the  witness,  and  sifted  him  in  private,  as 
he  should  have  done,  he  can  easily  avoid  asking  for 
explanations  which  can  not  be  given. 

Mr.  Cox  next  observes  how,  without  transcend- 
ing the  proper  limits,  you  can  "  elicit  a  repetition  of 
the  most  important  parts  of  the  evidence-in-chief." 
This  is  often  very  important. 

Our  author  then  continues  in  the  following 
admirable  strain : 

"  All  this  appears  easy  enough  in  the  descrip- 
tion ;  but  it  is  very  difficult  in  the  practice.  Before 
pou  have  sat  in  the  courts  many  days,  you  will  dis- 
cover the  vast  difference  between  different  advocates 
in  the  ability  with  which  they  conduct  a  re-examina- 
tion. Sometimes  you  will  see  a  witness  who  has 
been  apparently  destroyed  by  a  cross-examination, 
triumphantly  set   up    again  by  the    admirable  skill 


RE-EX  A  MINA  TION.  3 1 5 

with  which  he  is  re-examined — every  weak  point 
strengthened,  every  contradiction  explained  away, 
every  doubt  removed,  and  his  original  story  repeated 
with  confirmations.  On  the  other  hand,  when 
undertaken  by  an  inefficient  advocate,  you  will 
observe  how  bad  is  often  made  worse  by  injudicious 
attempts  to  mend  it,  and  that  which  had  been  left 
in  doubt  by  his  adversary,  converted  into  a  defeat. 
The  difference  will  be  found  to  consist  mainly  in 
that  discretion  which  enables  the  advocate  to  ad- 
vance his  questions  to  the  precise  point  at  which 
the  answers  are  innocuous,  and  avoiding  such  as  are 
not  touched  upon  in  cross-examination,  so  mould- 
ing his  queries  that  they  shall,  while  adhering 
strictly  to  the  rules,  necessarily  bring  out  those 
leading  points  in  his  own  case  which  he  is  desirous 
of  repeating." 

Mr.  Cox  falls  far  short  of  the  object  of  re- 
examination when  he  bids  his  reader  remember  that 
its  business  is  the  7'estoration  of  the  witness  to  the 
confidence  of  himself  and  jury.  I  have  already 
cited  another  passage  wherein  he  says  "  that  the 
object  of  re-examination  is  simply  to  obtain  from 
the  witness  an  explanation  of  that  which  he  had 
said  in  cross-examination."  These  passages,  taken 
together,  do  not  express  the  whole  object.  I  think 
that  I  have  already  set  forth  the  true  object.     It  is 


3i6  CONDUCT    OF    LITIGATION. 

to  bring  out  the  truth,  which  the  art  of  the  cross- 
examination,  or  the  failure  of  the  witness,  has  dis- 
torted or  suppressed. 

The  three  chapters '  of  Mr.  Cox,  one  on  Ex- 
amination-in-Chief,  another  on  Cross-Examination, 
and  the  last  on  R.e-Examination,  are  valuable.  I  do 
not  hesitate  to  say  that  they  are  by  all  odds  the 
most  excellent  part  of  his  work,  which  the  profes- 
sion has  so  much  reason  to  regret  has  been  left 
unfinished.  But  the  cardinal  error  of  these  chap- 
ters, greater  even  than  the  failure,  by  reason  of  the 
absurd  custom  of  the  English  Bar,  which  prevents 
conference  of  party  and  witness  with  counsel — to 
note  the  great  importance  of  having  heard  your 
witness  tell  his  tale,  or  of  having  heard  a  reliable 
narrative  of  that  of  the  hostile  witness, — I  say  that 
the  cardinal  error  of  these  chapters  is  that  they 
everywhere  inculcate  plainly  that  he  is  the  best 
examiner  who  suppresses  what  of  the  unfavorable 
truth  he  can.  Our  times  call  for  a  higher  morality. 
While  it  is  not  incumbent  on  the  counsel  to  make 
out  the  case  of  the  opposite  party,  still  he  is  not  to 
be  tolerated  in  so  conductinsr  an  investig"ation  of 
facts  as  to  bring  out  that  which  he  knows  to  be  a 
false  presentation,  or  a  deliberate  suppression  of  the 
truth.  Let  the  lawyer  be  trained  to  win  by  truth ; 
•  Adv.  351-441. 


RE-EX  A  MINA  TION.  3 1 7 

let  him  be  taught  to  fight  for,  and  with  nothing 
else,  and  he  will  then  no  more  look  to  trick  and 
chicane,  than  a  man  will  try  to  travel  by  flying. 
This  will  increase  the  efficiency  of  the  Bar.  Amer- 
ica does  not  wish  a  band  of  lawyers  perpetually 
vigilant  to  cheat  the  honest,  and  found  verdicts  on 
falsehood.  A  lawyer  may,  I  think,  honestly  demand 
for  his  client  every  advantage  which  the  law  gives 
him  ;  that  is,  there  may  be  a  bad  law  which  benefits 
the  client,  and  he  must  have  that  advantage,  unless 
he  himself  surrender  it.  The  people  have  the 
undoubted  right  to  make  laws  which  do  not  pal- 
pably violate  great  principles  of  morality ;  but  they 
have  no  right,  and  they  have  never  claimed  such,  to 
permit  falsehood,  and  encourage  the  concealment 
of  truth.  And  the  lawyer  who  trains  himself  to 
look  for  the  truth  of  the  facts  of  his  cases,  and  is 
not  afraid  of  this  truth,  will  ever  have  his  adver- 
saries afraid  of  him.  He  will  only  lose  cases  that 
he  will  see  with  joy  that  he  should  have  lost. 

But  there  are  some  matters  appertaining  to  the 
examination  of  witnesses,  which  we  have  reserved  for 
notice  now,  after  having  taken  such  an  extensive 
survey  of  what  we  may  term  the  great  body  of  the 
rubject. 

It  is  often  the  privilege  of  the  party  to  have  the 
witnesses  of  his  adversary  ordered  out  of  court.    The 


3i8  CONDUCT    OF    LITIGATION 

law  should  allow  it  in  all  cases.  But  it  is  a  privilege 
which  need  not  be  always  exercised.  Speaking 
only  from  my  own  experience,  I  will  say,  that  I 
have  noted  it  advisable  nearly  always,  when  you  are 
suddenly  called  without  opportunity  of  much  prepar- 
ation to  defend  some  exciting  charge  of  crime.  The 
matter  should  be  well  considered  before  the  trial,  if 
there  be  time.  It  can  often  be  made  subservient  to 
the  purposes  of  a  cross-examination  intended  to 
detect  falsehood.     I  will  give  one  instance. 

The  Sta^e  was  trying  to  identify  a  particular 
defendant  as  having  committed  a  deed  of  violence, 
by,  among  other  proofs,  tracking  up  a  horse  alleged 
to  be  his  riding-horse,  from  the  place  where  the 
crime  was  committed  to  his  dwelling,  some  miles  off. 
The  counsel  for  the  defense  acquainted  himself  well 
before  the  trial  with  the  road  which  the  horse  was 
reported  to  have  gone.  About  a  mile  from,  the  place 
of  the  violence  the  passengers  had  made  a  new  road, 
leaving  the  public  road,  and  turning  about  in  the 
open  fields  and  woods  to  avoid  some  dangerous 
places,  and  returning  to  the  original  road  about 
half  a  mile  from  the  point  of  divergence.  Two 
witnesses  were  to  testify  to  tracking  up  the  horse  in 
company.  They  were  ordered  out  of  court,  and 
afterward,  under  examination,  one  tracked  the  horse 
along  the  old  road,  the  other  along  the  new  road,  and 


RE-EX  A  MINA  TION.  3 1  g 

both   swore  that  they  were  in  company  with  each 
other  at  the  time. 

The  better  the  character  of  the  witnesses  for  tmth 
and  coolness,  the  less  you  will  make  by  ordering 
them  out.  If  they  come  to  the  stand,  one  by  one, 
from  his  confinement,  and  tell  in  the  main  and  sub- 
stance the  same  tale,  differing  only  in  those  usual 
discrepancies  which  are  but  proof  of  no  collusion  be- 
tween them,  the  effect  is  very  damaging  on  him  who 
had  them  ordered  out.  He  is  caught  in  his  own  trap. 
Mr.  Cox's  counsel  as  to  objections  is  well  worth 
transcribing:  "  And  let  us  warn  you  against  a  fault 
into  which  young  advocates  are  especially  apt  to  fall- 
that  of  making  too  frequent  and  too  frivolous  objec- 
tions. Many  inexperienced  men  appear  to  think, 
that  by  continually  carping  at  the  questio  s  put  to 
the  witnesses  by  the  other  side,  they  are  proving  to 
the  audience  how  quick  and  clever  they  are.  But 
this  is  a  mistake.  Such  an  exhibition  of  captious- 
ness,  v/hether  affected  or  real,  is  offensive  to  the 
court  and  jury  ;  it  displeases  the  attorneys  wJw  see 
through  it,  and  only  deem  you  an  ass  for  your  pains 
and  it  can  impose  only  upon  the  mob  in  the  gallery, 
whose  applause,  however  desirable  in  politics,  is  rather 
injurious  than  otherwise  to  a  professional  reputation." ' 

'  Compare  with  7th  and  8th  Golden  Rules  for  Examina- 
tion, a7tte. 


320  CONDUCT    OF    LITIGATION. 

The  lawyer  should  train  himself  to  meditate 
while  listening  to  the  examination  of  his  adversary, 
how  he  will  reply  to  it  by  examination.  To  be  on 
the  alert  for  objections  to  questions  interferes  with, 
and  often  prevents  this  attention.  You  vnll  note 
that  the  best  and  most  successful  lawyers  raiely  ob- 
ject to  a  question.  Their  minds  are  occupied  with 
the  testimony,  the  witness,  and  what  they  are  going 
to  do  with  both,  when  they  can  examine  him. 

Still  it  is  often  important  to  cut  oif  an  illegal 
examination,  and  when  the  objection  is  made,  it 
should  be  done  quietly,  and  but  seldom  with  much 
argument,  unless  the  court  is  in  doubt. 

I  have  noticed  that  some  of  the  best  lawyers  are 
very  adroit  in  providing  grounds  for  a  new  trial,  in 
case  of  defeat,  by  judicious  objections  to  testimony, 
not  very  strongly  argued. 

The  manner  of  the  counsel  conducting  an  ex- 
amination is  of  great  importance.  We  too  often 
see  even  eminent  lawyers  lose  patience  with  a  dull 
witness  of  their  own,  and  say  things  undeservedly 
sharp.  All  of  us  should  recollect  that  in  the  court- 
room we  are  at  home,  and  that  parties  and  witnesses 
are  in  some  sort  our  guests,  and  guests  frequently 
ill  at  ease.  It  behooves  us  that  we  be  not  rude  and 
unmannerly  in  our  own  house.  And  the  glaring 
impolicy  of  anything  but  the  most  pleasant   treat- 


RE-EXAMINATION.  321 

meat  of  witnesses  should  never  be  forgotten.  The 
jury  represent  the  non-professional  public.  They 
naturally  sympathize  with  those  who  come  from 
their  own  ranks,  and  they  have  and  ought  to  have 
the  keenest  sense  of  any  injustice  done  by  lawyers 
to  witnesses.  Blustering  with  witnesses  is  of  no 
advantage.  Convince  an  honest  jury,  not  by  brow- 
beating and  confusion,  but  by  a  quiet,  gentlemanly 
show  of  the  truth,  that  a  witness  is  l>ing,  and 
they  will  find  against  him  with  evident  pleasure. 
But  I  have  fancied,  sometimes  when  looking  on, 
that  I  have  seen  good  cases  lost,  because  the  jury 
were  driven  away  from  them  by  a  too  rough  hand- 
ling of  the  adverse  witnesses.  If  this  was  so,  it  was 
not  the  fault  of  the  jury  —  it  was  the  fault  of  the 
bullying  and  hectoring  counsel,  who  blinded  them 
to  the  truth  of  his  own  side. 

The  court  should  protect  witnesses  from  the  un- 
called-for assaults  of  counsel.  I  am  glad  that  I  can 
fortify  m/self  with  the  brave  words  of  the  author 
of  "  Adventures  of  an  Attorney,''  whoever  that 
author  may  be.  The  passage  is  a  continuation  of 
that  quoted  in  the  last  chapter,  which  narrated  the 
baffled  effort  of  Mr.  Scarlett  to  push  his  cross-e:x ani- 
mation of  Mr.  Sharpe  too  far: 

"  Many  assaults,  far  more  rude  than  this,  are 
hourly  made  by  counsel  at  Nisi  P7HUS,  on  attori^eys. 


322  CONDUCT     OF    LITIGATION. 

and  witnesses,  and  I  can  not  forbear  observing  that 
in  general  the  court  is  far  too  indulgent  to  the  bar 
on  these  occasions.  It  is  possible,  that  in  an  idle 
hour,  even  these  pages  may  meet  a  judicial  eye  ; 
I  have  known  some  of  their  lordships  to  amuse  them- 
selves with  more  unprofitable  books !  should  such 
an  honor  await  me,  1  must  be  excused  for  remind- 
ing my  most  learned  lounger  that  it  is  the  duty 
of  the  bench  to  protect  a  witness,  not  less  than  to 
compel  the  truth.  I  do  not  say  to  screen  him,  but 
emphatically  to  protect  him  :  and  where  a  judge, 
from  reluctance  to  face  the  sneers  of  counsel,  or  to 
encounter  his  coarse  remonstrance,  allows  him  to 
practice  on  the  timidity  or  outrage  the  just  sensi- 
bility of  a  defenseless  witness,  or  what  is  worse  to 
ea.lumniate  and  stigmatize  one  who  is  no  party 
except  professionally  to  the  cause,  and  who  has  no 
opportunity  of  being  heard  in  explanation,  that 
judge  is  not  less  guilty  of  a  violation  of  his  oath, 
than  if  he  sold  his  opinion  or  his  influence  to  the 
highest  bidder.  I  have  often  been  disgusted,  not  less 
with  the  cowardly  license  assumed  by  the  Bar  in 
their  comments  on  third  parties,  under  the  conven- 
ient plea  of  forensic  liberty  of  speech,  than  I  have 
with  the  apathy  of  the  judge  who  heard  them,  and 
silently  permitted  the  scandalous  abuse  that  he 
ought    to    have    checked  with  solemn    indignation. 


RE-EX  A  MINA  TION.  3  2  3 

On  some  rare  occasions,  when  the  language  of 
counsel  has  grossly  exceeded  the  limits  of  common 
decency, and  the  insulted  witness  has  been  provoked 
into  keen  retort,  the  bench  perchance  has  interfered  ; 
but  how  ?  by  haughty  reproof  to  the  unfortunate 
victim,  and  expostulation  with  his  vulgar  assailant, 
so  mild  and  so  equivocal  as  to  imply  sympathy  with 
the  offense,  rather  than  stern  rebuke  to  the  offender. 
It  is  a  natural  feeling  to  love  and  reverence  our 
judges,  and  long  may  it  continue  to  be  so  ;  but 
they  little  know  how  they  shake  that  love  and 
reverence  to  their  very  foundation,  when  they  thus 
betray  a  partiality  to  their  corps,  that  tends  to  deter 
all  men  of  respectability  and  of  nerv^ous  tempera- 
ment from  the  highest  duty  of  a  citizen,  bearing  his 
testimony  to  truth  and  justice  in  open  court !  Such 
is  the  horror  of  the  witness-box,  that  I  have  often 
known  a  good  and  honest  case  abandoned  to  spare 
a  relative  or  friend  the  pain  of  entering  it ;  and  on 
one  occasion,  I  have  even  known  a  witness  to  pay  the 
debt  and  costs,  rather  than  be  exposed  to  the  risk  of 
insult  that  he  dared  not  resent  in  court,  and  would 
not  have  brooked  elsewhere  !  "  ' 

Sometimes  the  judge  is  seen,  even  here   in  free 
America,  where   the  people   are  supreme,  servilely 
egged  on  by  a  favorite  counsel  into  badgering  an 
'Adventures  of  an  Attorney,  248,  eiseq. 


324  CONDUCT    OF    LITIGATION. 

outraged  witness,  who  has  been  driven  to  bay  hy 
the  brutality  and  coarseness  of  an  illegal  examina- 
tion. 

And  there  is  another  hint  to  be  given.  If  the 
trial  is  long,  and  there  are  many  details  of  evidence, 
often  much  that  is  unanticipated  will  be  proven.  It 
v/ill  be  drawn  from  your  own  witnesses  by  cross- 
examination,  and  you  will  always  in  such  a  case  be 
surprised  by  unexpected  proof  made  by  the  adver- 
sary. This  new  proof,  when  made,  will  often  point 
to  other  witnesses,  or  other  documentary  evidence 
which  you  should,  if  possible,  investigate  in  time  to 
get  in.  This  duty  must  be  deputed  to  some  asso- 
ciate, who  must  take  care  to  be  swift  enough,  but 
not  too  swift.  Let  every  available  parcel  of  evidence 
be  put  in.  The  courts  are  becoming  so  liberal  that 
they  now  often  allow  re-opening  of  the  evidence 
during  the  argument,  so  that  a  party  may  prove 
something  which  he  had  forgotten.  And  the  dis- 
covery of  important  evidence  during  the  trial, 
which  can  not  be  had  immediately,  is  surely  a  good 
ground  of  postponement  until  the  party  can  have 
it. 

Many  times  the  witness  will  be  examined  by 
commission.  Of  course,  nearly  the  same  principles 
will  apply  that  we  have  already  shown  to  govern 
viva  voce  examination,     I  will  note  that  in  many  of 


RE-EXAMINATION.  325 

oui  States,  the  law  as  to  taking  testimony  by  com- 
mission needs  amendment.  A  witness  should  in  all 
cases  be  examined  by  viva  voce  questions  asked  by 
the  ablest  counsel  that  the  parties  may  see  fit  to 
employ.  He  who  answers  only  a  set  string  of  direct 
and  cross-questions,  can  hardly  be  sifted  as  he 
should  be. 

The  length  of  these  chapters  on  the  conduct  of 
the  evidence  needs  no  apology ;  and  there  are  other 
matters  yet,  appertaining  to  the  testimony  at  the 
trial,  which  must  await  another  opportunity  of 
notice.  Well  did  David  Paul  Brown  say,  prefac- 
incf  his  "Golden  Rules":  "There  is  often  more 
eloquence,  more  mind,  more  knowledge  of  human 
nature  displayed  in  the  examination  of  witnesses, 
than  in  the  discussion  .  of  the  cause  to  which  their 
testimony  relates.  Evidence  without  argument  is 
worth  much  more  than  argument  without  evidence. 
In  their  union  they  are  irresistible." 

The  putting  in  of  the  evidence  has  two  great 
objects:  (i)  To  support  by  your  proofs  the  allega- 
tions of  your  pleadings  on  which  you  stand.  (2) 
To  make  the  court  and  jury  understand  the  proofs, 
and  see  clearly  their  relevancy,  force,  and  satisfac- 
toriness.  The  mind  that  arrays  the  proofs,  and  sees 
intuitively,  to  use  the  common  parlance  of  the  Bar, 
when  the  case  is  made  out,  is  the  mind  of  the  law- 


326  CONDUCT    OF    LITIGATION. 

ycr,  and  the  talent  of  so  ordering  these  proofs,  and 
bringing  out  clearly  their  whole  details  that  they 
will  command  attention  and  understanding,  ought 
to  be  likewise  of  the  mind  and  qualifications  of 
every  lawyer.  And  we  are  now  ready  to  leave  the 
subject  of  examination,  whether  direct,  cross,  or  re- 
examination, in  this  the  last  presentation  of  its  true 
object  and  greatest  merit.  We  say,  then,  that  that 
examination,  whichever  one  of  the  three  kinds  it  is, 
is  the  best,  which  gets  out  the  greatest  amount  of 
supporting  proof,  and  which  presents  this  proof 
most  intelligibly  to  the  court  and  jury. 

Next  in  value  to  the  vision  of  the  lawyer,^ — that 
is,  his  acumen,  which  will  be  fully  discussed  after  a 
while, — are  the  qualities  of  'patience  and  good- 
humor.  The  case  must  be  got  out,  the  case  must 
be  understood.  To  achieve  both  will  require  pa- 
tience and  good-humor.  Nothing  is  so  unlawyer- 
like  as  an  eagerness  to  close  the  evidence  not  fully 
finished,  to  enter  upon  the  argument. 

And  nowhere  is  coolness  of  more  avail  than  m 
conducting  the  trial  of  a  stubbornly-contested  case. 
There  is  a  throng  generally  attending,  representing 
that  great  power  in  America,  to  wit,  public  opinion , 
and  this  audience,  though  never  so  quiet,  approve  or 
disapprove.  You  feel  it,  although  you  do  not  look 
at  them.     And   then  the  passion   and  zeal  of  your 


RE-EXAMINA  TION.  327 

client  and  all  your  side,  the  thrusts  of  your  adver- 
sary, and  often  eager  contests  over  points  submitted 
to  the  court.  In  short,  nothing  but  the  extreme 
of  coolness  will  prevent  you  from  blundering,  and 
keep  you  ready  to  seize  upon  every  advantage 
offered.  Then  forget  everybody  save  the  witnesses, 
the  court  and  jury,  and  the  evidence. 

And  we  give  as  another  caution,  that  you  do  not 
rely  too  slavishly  upon  your  premeditation.  We 
often  see  a  lawyer  conducting  a  case  upon  some 
preconceived  theory,  which  being  too  narrow,  he  is 
all  the  while  trying  to  trim  down  the  facts,  and 
fit  them  to  it.  As  the  whole  case — that  of  your  own 
as  pared  off  by  your  adversary,  and  the  case  which 
he  has  made — unfolds  itself,  any  mistaken  anticipa- 
tion must  be  corrected,  and  your  theory  must  em- 
brace all  the  facts. 

We  remind  the  reader  that  the  evidence,  put  in 
as  it  should  be,  is  almost  the  consummation  of  your 
labors. 


CHAPTER   VII. 


NOTE-TAKING. 


During  the  whole  progress  of  the  case,  you 
should  keep  a  iTinning  memorandum  of  everything 
important.  This  duty  of  note-taking  is  too  often 
neglected.  We  have  confessed  in  a  previous  chapter 
the  superiority  of  the  English  practice  to  ours  in 
the  matter  of  Briefs,  and  we  must  also  admit  that 
the  careful  note-taking  by  both  their  judges  and 
counsel,  are  well  worthy  of  a  more  extensive  imita- 
tion here.  We  will  begin  with  two  passages  from 
Mr.  Cox,  whom  we  have  so  often  cited  : 

"  While  the  examination-in-chief  is  proceeding, 
it  will  be  the  duty  of  the  counsel  on  the  other  side 
to  give  the  most  attentive  ear  to  every  question  and 
every  answer,  and  to  take  a  note  of  it  upon  his  brief."  ^ 

"  Your  notes  of  the  evidence  as  it  proceeds 
should  be  fully  taken,  because  you  can  not  anticipate 
at  this  period  of  the  cause  what  portions  of  it  may 
prove  to  be  material,  nor  where  a  question  may 
arise  as  to  what  was  the  witness's  answer.  In  taking 
these  notes,  you  begin  with  the  day  and  date  on 
which  the  trial  took  place,  and  the  name  of  the 
'  Cox,  Adv.  366. 


NOTE-TAKING.  329 

judge.  You  then  very  briefly  note  the  more  impor- 
tant points  of  the  opening  speech,  especially  such 
as  you  propose  to  answer,  and  you  indicate  such 
as  will  require  peculiar  attention,  by  scoring  it  twice 
or  thrice.  Then  stating  the  name  of  the  witness  and 
the  counsel  by  whom  he  is  examined,  you  set  down 
his  evidence,  leaving  a  broad  margin  for  your  own 
observations,  if  any  should  occur  to  you.  It  is  not 
necessary  to  give  both  question  and  answer,  save 
when  the  question  strikes  you  as  one  of  special 
import,  or  to  which  you  might  desire  to  refer  here- 
after ;  it  will  suffice  merely  to  give  the  answer  in  the 
witness's  own  words,  as  nearly  as  you  can  observe 
them,  so  as  to  make  them  intelligible.  Thus,  if  a 
witness  be  asked :  '  Were  you  at  Exeter  on  Satur- 
day,' and  answers,  '  I  was,' — a  leading  question  but 
probably  not  worth  objecting  to, — you  set  it  down 
thus :  '  Was  at  Exeter  on  Saturday.'  But  let  it  be  a 
rule  with  you,  so  far  as  practicable,  always  to  take 
the  very  tvords  used  by  the  witness.  As  you  pro- 
ceed, you  will  find  that  the  evidence  suggests  to  you 
matter  to  be  explained  on  cross-examination,  or  to 
be  answered  in  your  speech  for  the  defense,  or  to  be 
contradicted  by  your  own  witness.  Here  it  is  that 
you  will  find  the  margin  useful.  When  such  an  idea 
occurs  to  you,  never  suffer  it  to  escape,  trusting  to 
recall  it  when  it  is  wanted,  for  amid  the  multiplicitv 


OJ^ 


CONDUCT    OF    LITIGATION. 


of  claims  upon  your  attention,  you  can  not  be  assured 
that  it  will  return ;  but  grasp  it  instantly,  and  in  the 
margin  against  the  evidence  that  is  so  to  be  treated, 
set  some  mark  which  may  catch  your  eye,  and  if  the 
words  are  not  likely  to  suggest  the  thought  you  de- 
sire to  recall,  you  can  in  a  hurried  sentence  insert  there 
that  of  which  you  wish  to  be  reminded.  This  plan  is 
especially  useful  for  the  purpose  of  cross-examination, 
for  it  is  extremely  difficult  to  carry  in  the  mind  all 
of  the  evidence-in-chief  that  needs  to  be  explained 
or  deprived  of  its  credit ;  but  with  this  scored  and 
noted  report  of  the  witness's  testimony  before  you, 
it  is  unlikely  that  anything  of  amount  will  escape 
your  attention."  ^ 

This  advice  is  very  judicious.  A  lawyer  who  has 
never  tried  it,  will  be  surprised  in  a  little  while  after 
he  begins,  at  the  number  of  notes  he  can  enter  in  the 
margin  for  cross-examination,  and  yet  make  besides 
a  good  report  of  the  testimony. 

Generally  the  notes  of  the  trial  should  be  taken 
by  a  counsel  who  does  not  examine.  I  have  often 
fancied  it  to  be  the  better  practice  to  devolve  on  the 
leading  counsel  the  duty  of  note-taking,  from  which 
he  can  easily  prompt  whatever  examination  he  may 
wish  made  by  his  junior.  The  examination  of  a 
witness  is  no  such  mystery  as  is  often  alleged.  It 
consists    in     asking    proper    questions,    which    will 

*  Adv.  371. 


NOTE-TAKIXG.  331 

often  be  better  suggested  by  a  listener  than  an  ex- 
aminer. 

But  it  is  not  only  the  evidence  of  which  the 
lawyer  is  to  take  notes.  The  rulings  and  action  of 
the  court,  demeanor  and  conduct  of  witnesses,  words 
of  the  opposite  counsel  and  authorities  read  requir- 
ing attention,  and  all  the  other  important  occurrences 
of  the  trial  are  to  be  briefly  recorded.  The  lawyer 
will  rely  on  these  carefully  taken  and  accurate  notes, 
to  prompt  him  in  examining  the  witnesses,  in  shap- 
ing his  counter-evidence,  in  preparing  his  argument ; 
and  it  must  not  be  forgotten  in  providing  himself 
with  sure  grounds  of  a  new  trial  if  the  verdict  is 
adverse. 

Some  of  our  lawyers  eschew  all  memoranda,  and 
surprise  by  their  wonderfully-accurate  preservation 
in  memory  of  everything  which  happened  and  was 
said  during  the  trial.  But  even  this  highest 
achievement  of  the  unaided  memory  is  far  inferior 
in  efficiency  to  the  careful  contemplation  of  a  full 
report  of  the  trial,  spread  on  paper  before  the  eyes. 
The  counsel,  reviewing  his  notes  at  night  during  the 
trial,  will  often  detect  inconsistencies,  and  other 
weak  points  of  his  adversary's  case,  which  would 
have  escaped  him  altogether  if  he  had  kept  no 
notes.  He  detects  thern  because  they  are  before  his 
mind's  eye  a  sufficient  time.     Two  horses,  if  met 


332  CONDUCT    OF    LITIGATION. 

apart  from  each  other,  may  seem  to  the  most  obser- 
vant of  the  same  color;  hut  when  actually  compared 
together,  will  be  seen  to  be  very  different.  We 
sometimes  mistake  one  person  for  another,  and  we 
are  often  effectually  cured  when  we  have  once  met 
both  of  them  together.  This,  then,  is  a  certain 
superiority  of  note-taking  over  the  best-trained 
memory  alone.  The  testimony  and  other  important 
occurrences,  can  be  reviewed  over  and  over  to  the 
the  last  extreme  of  accuracy. 

We  have  already  remarked  heretofore,  how  more 
accurately  our  day  and  generation  study  particulars, 
than  any  which  has  gone  before.  And  we  have 
also  noted  that  trials  become  more  sifting  after  the 
truth.  The  lawyer  who  masters  all  the  details  of  his 
cases  is  called  for  on  all  sides,  and  no  other  can  have 
much  standing  as  a  practitioner.  For  this  reason, 
then,  he  can  not  dispense  with  note-taking.  It  is 
notorious  that  the  attention  is  ever  napping  over 
details  seemingly  trivial.  But  the  note-taking  must 
never  flag,  and  it  will  preserve  for  future  use  many 
things  that  would  have  othenvise  been  lost. 

The  great  mass  of  our  profession,  even  the  ablest 
and  most  gifted,  have  not  that  quickness  of  appre- 
hension, and  that  fixity  of  first  impressions  which 
will  enable  them  to  recollect  fully. 

I  will  give  an  instance  to  illustrate  my  meaning 


NOTE-TAKING.  333 

I  once  knew  a  lawyer  of  good  parts  and  fair  stand- 
ing, who  could  hear  the  longest  document  read  in 
court,  and  long  after  the  trial,  without  ever  having 
refreshed  his  recollection,  he  could  give  you  the 
substance  of  the  minutest-  particular  as  he  had  un- 
derstood it.  He  was  opposed  often  by  a  lawyer  01 
greater  power,  but  his  inferior  in  the  respect  men- 
tioned. The  latter  would  carefully  scrutinize  and 
read  and  re-read  any  document  put  in  evidence,  and 
when  he  came  to  notice  it  in  his  argument,  was  as 
vastly  superior  in  his  comprehension  to  the  other,  as 
that  other  was  to  him  in  quickness  of  apprehension. 
The  greater  lawyer  of  the  two,  one  who  w^as  the 
monarch  of  the  Bar  for  almost  forty  years,  owed  his 
wonderful  success  to  his  precise  and  accurate  knowl- 
edge of  the  details  of  his  cases,  and  this  knowledge 
he  got  from  something  that  often  seemed  to  be 
nothing  but  poring  over  them. 

The  following  passage  describes  the  custom  ot 
Choate,  who  has  left  a  reputation  as  a  lawyer  more 
enviable,  if  possible,  than  that  of  the  great  William 

PiNKNEY  : 

"He  took  constant  and  copious  notes  in  an 
indescribable  and  incomprehensible  hand.  He 
would  write  on  up  to  the  very  last  moment  before 
rising  to  address  the  jury. 


331  CONDUCT    OF    LITIGATION. 

"  When  he  came  to  address  the  jury,  two-thirds 
of  his  argument  apparently  would  be  written. 

"  Every  ni.o;ht  during  a  trial  he  took  home  his 
notes ;  collated,  digested,  and  re-arranged  them  with 
reference  to  the  final  argument. 

"He  was  critically  careful  to  have  every  word 
down  on  paper  which  was  uttered  in  evidence  ; 
and  if  he  was  called  out  of  court  at  any  time  for  a 
few  moments,  he  would  compliment  some  young 
member  of  the  Bar  or  student  who  happened  to  be 
near  him,  by  placing  him  in  his  seat,  to  continue  the 
notes  of  the  evidence  while  he  was  gone." ' 

Of  course  none  of  us  feel  constained  to  follow 
exactly  the  plan  of  Choate's  note-taking.  But  his 
desire  to  make  up  for  his  own  use  a  complete  report 
of  the  trial,  as  well  as  a  draft  of  much  of  his  speech, 
should  be  attentively  meditated  by  those  who  disre- 
gard such  helps.  In  this  careful,  extensive,  and 
accurate  note-taking,  Choate  seems  to  me  a  fore- 
runner of  the  coming  Bar,  who  will  sift  all  things 
too  thoroughly  to  be  often  caught  in  blunders. 

The  most  important  note-taking  is  that  of  the 
testimony.  A  faithful  report  of  it  should  be  kept 
If  practicable,  every  word  of  the  witness  should  be 
'  Reminiscences  of  Rufus  Choate,  140. 


NOTR-TAKING.  335 

taken  cown.  But  if  the  trial  is  too  rapid  for  that, 
let  the  substance  of  everything  important  be  taken 
down.  Often  in  cases  of  sufficient  magnitude  to  jus- 
tify such  an  expense,  a  reporter  is  hired  by  the  par- 
ties, and  each  side  can  use  the  report.  But  it  is 
highly  necessary  that  you  have  notes  of  your  own, 
that  you  may  overlook  at  your  pleasure. 

The  practice  of  Choate,  in  reviewing  and  re- 
arranging his  notes  every  night  of  the  trial,  deserves 
attention.  All  the  striking  things  in  the  testimony 
should  be  carefully  gone  over  at  every  opportunity, 
and  prepared  for  the  argument  or  the  future  conduct 
of  the  evidence.  The  contradictions  and  conflicts  in 
the  evidence,  the  attacks  on  some  material  witness, 
the  preponderances  of  your  adversary,  and  those  of 
your  owai,  ought  all  to  be  thoroughly  digested  at 
every  interval  of  the  trial,  and  put  in  convenient 
memoranda  for  instant  use.  This  digesting  your 
notes  is  something  like  the  systematizing  of  the 
day-book  and  journal,  which  is  wrought  by  posting 
the  ledger. 

All  of  the  young  men  now  coming  into  the 
profession  should,  if  possessed  of  the  means  and 
ability,  master  phonography.  Who  of  us  has  not 
desired  the  faculty  of  taking  down  as  rapidly  a? 
words  can  be  spoken,  the  opening  of  the  case,  the 
documents  read  in  evidence   and  the  oral  testimony 


336  CONDUCT    OF    TJTIGATION. 

the  speeches,  and  the  instructions  of  the  court  ?  We 
do  not  know  yet  all  of  the  wonders  which  the 
phonographic  alphabet  will  work.  It  will  probably 
relieve  the  overworked  telegraph,  and  approximate 
the  intercourse  of  the  deaf  and  dumb,' in  rapidity,  to 
the  interchange  of  speech.  And  we  see  what  a  rev- 
olution it  is  going  to  work  in  judicial  proceedings. 
But  when  the  courts  all  have  their  phonographic 
reporters,  each  lawyer  will  have  the  same  need  for 
his  own  notes,  to  examine  ad  libihiin. 

But  if  you  are  not  a  phonographer,  and  you  will 
only  be  in  earnest  to  report  every  trial  fully,  you  can 
do  wonders  in  long  hand.  Do  not  be  flurried.  Use 
every  interval  of  objections,  useless  questions  and 
answers,  and  you  will  generally  be  always  up. 
Note  everything.  Of  course  you  w^ll  take  down 
the  evidence  fully ;  but  do  not  stop  with  that. 
Note  all  the  points  taken,  rulings  of  the  court,  and 
authorities  read.  And  let  it  be  your  desire,  above 
all  things  else,  to  have  your  notes  so  accurate  that 
not  the  most  jealous  adversary  or  friend  can  detect 
an  addition  or  omission. 

We  will  now  close  this  chapter,  hoping  that  if 
we  have  not  said  all  that  can  be  said,  we  have  at 
least  so  suggested  it  that  it  will  occur  to  the  reflec- 
tive reader. 


CHAPTER  VIII. 


THE  ARGUMENT. 


The  evidence  all  being  in,  the  case  is  sometimes 
submitted  without  argument.  The  jury  will  then 
hear  the  instructions  of  the  court,  which  we  term 
here  in  America,  the  charge,  but  which  our  English 
brethren  call  the  summing-up. 

Oftentimes  you  will  feel  it  better  to  offer  your 
adversary  to  dispense  with  all  argument.  The  case 
may  be  one  too  bad  to  argue,  or  it  may  be  too 
strong  to  be  hurt  by  argument.  Flere  you  must 
exercise  a  sound  discretion,  and  I  note  among  the 
courts  which  I  have  frequented  that  argument  is 
too  often  insisted  upon,  even  by  that  side  which  has 
nothing  to  make  from  it. 

One  of  the  first  lessons  which  a  lawyer  must 
learn,  to  make  himself  a  successful  practitioner,  is 
not  to  over-rate  the  power  and  influence  of  forensic 
speaking.  It  is  but  rarely  the  province  of  the 
speaker,  either  addressing  the  court  or  jury,  to 
do  anything  more  than  to  show  that  he  is  already 
entitled  to  the  judgment  or  verdict  which  he  seeks. 
But  there  is  often   conduct  of  cases  upon  the  as- 


338  CONDUCT    OF    LITIGATION. 

sumption,  that  an  ingenious  speech  may  blind  the 
jury  to  the  facts,  and  hoodwink  the  judge.  Judges 
are  surprised  into  deciding  against  the  law,  and 
juries  are  sometimes  duped  into  mistaken  findings, 
but  it  is  not  as  often  as  those  may  believe  who  have 
never  carefully  averaged  results  of  trials  and  argu- 
ments. 

In  the  palmy  days  of  Grecian  and  Roman  elo- 
quence, the  sway  of  the  orator  was  almost  infinitely 
stronger  than  it  is  now.  A  popular  advocate  was  a 
power  that  is  unknown  in  the  midst  of  our  English 
and  American  civilization.  And,  as  a  consequence 
speech-writing  or  logomachy  was  a  profession.  The 
composer  of  a  speech  often  gave  it  to  some  one 
else  to  deliver.  Popular  assemblies,  dicasteries,  and 
judges  were  expected  to  be  carried  away  by  fine 
speaking.  And  we  must  recollect,  to  understand  the 
fame  of  the  ancient  orators,  that  in  their  time  judg- 
ments and  findings  were  rather  the  habitual  result  of 
excited  feeling  than  of  sober  conviction. 

A  regard  for  law,  a  spreading  and  deepening 
desire  to  have  the  rules  of  legal  right  and  wrong 
uniform  in  their  administration,  and  an  increasing 
attention  to  and  scrutiny  of  evidence,  mark  conspic- 
uously to  the  student  of  past  history  of  even  free 
countries,  the  progress  of  modern  judicial  procedure. 
And  we  should  rejoice  at  this.     For  neither  is  the 


ARGUMENT.  339 

law  or  the  principles  of  evidence,  and  of  right  and 
wrong-,  variable  and  full  of  whims,  as  compared  vv^ith 
those  waves  of  feeling  of  old  which  swept  the  liti- 
gant on  to  speedy  victory  or  ruin. 

Our  modern  law  differs  more  from  the  old  by 
far  in  the  persistence  with  which  its  remedies  seek 
after  securing  parties  from  mistaken  judges  and 
juries,  than  in  what  we  may  term  its  code  of  sub- 
stantive rights.  The  great  cardinal  principles  of 
right  being  the  same  everywhere,  and  so  recognized, 
the  legal  principles  informing  the  codes  of  all  civ- 
ilized nations  will  be  nearly  the  same.  But  in  the 
administration  of  the  law,  there  are  found  wonderful 
differences.  In  my  judgment,  the  excellence  of  the 
common  law  is  not  that  it  is  at  all  the  perfection  of 
reason, — for  it  is  very  far  from  it, — but  it  is  in  the 
encouragement  which  it  gives  to  contending  parties 
to  fight  on  after  the  right.  A  public  trial,  a  public 
examination  of  witnesses,  a  public  argument,  a 
judge  deciding  and  a  jury  finding  in  the  full  eye- 
shot of  the  public,  and  at  last,  the  writ  of  error,  and 
a  published  decision  to  live  through  all  time, — these 
devices  to  secure  the  right  are  the  glory  of  the 
common  law.  The  tendency  goes  on  to  make 
judges  and  juries  more  independent  and  impartial, 
and  to  see  to  it  that  they  proceed  according  to 
known  rules  of  law.      A  nd  the  advocate  must  recol- 


340  CONDUCT    OF    LITIGATION. 

Icct  this  :  he  docs  not  wield  the  power  of  Pericles, 
or  Demosthenes,  or  Cicero,  when  he  stands  up  now. 
If  he  persuades  a  jury  into  a  false  verdict,  his 
triumph  is  empty.  If  he  cultivates  his  talents  for 
duping  and  'deceiving  those  who  are  to  pass  upon 
his  arguments,  he  will  be  only  causing  for  himself 
a  reputation  which  will  make  his  words  as  little 
attended  to  as  those  of  the  boy  in  the  fable,  who  cried 
"wolf!  wolf!"  too  much. 

The  monitions  of  Mr.  Cox  should  be  weighed 
by  every  young  lawyer  who  believes  that  he  can 
train  himself  to  win  cases  by  mere  speaking.  At 
the  close  of  his  chapter  on  "  The  Reply,"  '  he  says  : 

"  Above  all,  be  fastidious  as  to  the  introduction 
of  flights  of  oratory  ;  be  as  little  poetical  as  pos- 
sible, and  indulge  in  no  '  fine  phrensies.'  Courts 
of  justice  are  places  of  business  where  men  resort 
for  the  despatch  of  earnest  and  serious  affairs,  and 
not  for  empty  declamation  and  debating-club  talk. 
The  occasions  are  extremely  rare  that  permit  of 
anything  more  than  a  sensible,  plain-spoken  address 
to  a  jury  ;  enlivened,  if  you  please,  by  a  spice  of 
humor,  or  a  dash  or  two  of  wit  fairly  suggested  by 
some  person  cr  event  on  which  you  are  required  to 
comment  in  due  course.  But  let  nothing  tempt 
you  to  be  eloquent  about  mere  matters  of  business ; 

'  Adv.  472. 


ARGUMENT.  341 

to  rhapsodize  upon  a  tradesman's  bill,  or  to  scatter 
the  flowers  of  oratory  over  a  right  of  way." 

The  province,  then,  of  the  advocate  is  narrowed 
and  that  of  the  sway  of  the  law  has  much  enlarged 
and  seems  to  be  still  enlarging.  And  it  seems  to 
be  the  essence,  therefore,  of  a  fit  argument  that  it 
show,  if  it  can,  how  the  client  is  under  the  law,  and 
the  evidence  entitled  to  the  verdict. 

If  the  right  is  against  you,  palpably  and  mani- 
festly, you  should  not  try  to  show  it  to  be  for  you. 
Here  the  law  does  not  require  of  you  to  speak 
falsehood  If  you  have  done  your  whole  duty,  and 
have  brought  out  all  the  case  of  your  client,  and 
yet  the  evidence  or  the  law,  or  both,  are  so  clearly 
against  him  that  all  hope  is  gone,  you  should  mag- 
nanimously surrender.  Argument  is  useless.  You 
should  not  even  desire  to  succeed  here  if  you  could. 
But  the  great  majority  of  cases  are,  to  say  the 
least,  doubtful  to  the  counsel  engaged.  They  can 
not  be  impartial,  and  if  you  honestly  conceive  after 
hearing  all  of  the  evidence  that  you  ought  to  have 
the  verdict,  or  that  it  is  debatable  who  should  have  it, 
of  course  it  is  your  duty  to  strive  for  it  to  the  utmost. 

The  party  holding  the  affirmative  of  the  issue,  is 
generally  entitled  to  open  and  to  conclude  the  argu- 
ment, if  both  sides  have  introduced  evidence,  but  the 
party  holding  the  negative  of  the  issue  will  open  and 


342  CONDUCT    OF    LITIGATION. 

conclude  if  he  has  put  in  no  evidence.  A  lawyer  is 
sometimes  seen  to  sacrifice  advantages  of  evidence 
to  gain,  under  a  rule  of  practice  prevailing  in  many 
of  our  states,  the  opening  and  conclusion.  He  will 
introduce  no  evidence  for  the  defendant,  that  he  may 
have  the  last  word  in  the  argument.  Of  course,  if 
the  plaintiff  has  wholly  failed  in  his  evidence,  or  you 
are  willing  to  submit  the  case  on  it,  feeling  that  you 
can  not  strengthen  yourself  by  additional  proof,  it  is 
wrong  for  you  to  decline  the  advantage  of  the  reply. 
But  I  never  yet  knew  a  sacrifice  of  evidential  advan- 
tage by  the  defendant  for  the  purpose  of  getting  the 
last  word,  to  be  followed  by  anything  but  an  adverse 
verdict. 

We  have  already,  in  a  prior  chapter,  adverted  to 
the  English  usage  of  making  most  of  the  argu- 
ment before  the  evidence  is  all  in.  Our  rule  is  far 
better.  The  other  inverts  the  natural  order,  and  the 
commentary  is  to  be  meditated  before  the  text  is 
read.  We  do  not  argue  the  evidence  to  the  jury, 
until  they  have  heard  all  of  it.  The  essential,  there- 
fore, of  an  address  to  the  jury,  is  comment  upon  all 
the  evidence. 

But  the  speech  will  often  contain  argument 
for  the  court,  for  we  have  encountered  again  the 
distinction  of  law  and  fact  with  which  we  have  so 
much  to  do  in  practice     The  legal  positions  of  the 


ARGUMENT.  343 

counsel  arguing  must  be  stated  to  the  court,  and 
often  argued  in  the  midst  of  his  speech  to  the  jury. 
If,  therefore,  the  law  or  its  application  is  in  dispute, 
it  behooves  the  counsel  to  make  the  court  clearly 
see  his  positions.  Oftentimes  the  whole  controversy 
will  turn  on  a  legal  question,  and  again,  both  sides 
will  agree  as  to  the  law,  and  yet  dispute  over  the 
facts.  Whatever  may  be  its  nature,  the  counsel  must 
make  the  court  clearly  see  it.  No  lawyer  should,  in 
arguing  his  case,  fail  to  command  the  attention  of 
the  judge  to  the  real  issue  and  its  nature — whether 
it  is  all  of  fact,  or  all  of  law,  or  mixed. 

And  it  is  well  for  him  to  sound  the  judge  on 
matters  of  law.  The  non-communication  between 
counsel  and  judges  in  arguments  in  America,  is  far 
behind  the  English  practice.  Judge  Redfield 
says  of  the  English  custom  :  "  In  consequence  of 
the  constant  questioning  of  counsel  by  the  judges, 
aod  the  intimation  of  difficulties,  it  more  commonly 
happens  that  legal  questions  are  argued  mainly 
upon  that  side  where  the  court  feels  difficulty,  and 
thus  much  time  is  saved  in  the  trial." '  If  your 
judge  is  silent  and  reticent,  draw  him  out,  and  let 
each  of  you  understand  the  other  as  soon  as  possible. 
You  take  aim  in  the  dark  and  shoot  at  random, 
if  you  do  not  know  whether  he  understands 
'  Law  Almanac  (1S70),  74. 


344  CONDUCT    OF    LI  TIG  ATI  ON. 

you,   or   whether,  if    understanding,    he    agrees    oi 
dissents. 

I  need  not  stop  here  to  write  a  treatise  on  mak- 
ing law  arguments.  Such  a  book  is  but  little 
needed.  It  is  only  my  purpose  now  to  deal  with 
such  an  argument  as  a  matter  of  ordinary  practice. 
And  I  have  but  little  more  to  say,  than  that  it  is 
incumbent  upon  you  after  finding  the  court  agrees 
with  you  to  confirm  him  if  you  can,  or  if  finding 
that  he  dissents,  to  convince  him  if  possible  that  you 
are  right.  Your  own  discretion  will  tell  you  better 
and  better,  as  you  grow  older  in  practice,  when  to 
yield,  and  when  to  persist.  As  the  law  is  year  by 
year  generalized  more  comprehensively,  and  digested 
more  thoroughly,  and  arranged  more  accessibly, 
there  is  less  and  less  necessity  for  long  and  abstruse 
law  argument. 

The  great  need  for  the  head  of  the  lawyer  is  in 
analyzing,  and  rightly  grouping  the  facts  and  details 
of  his  cases.  And  having  mastered  the  details, 
he  is  to  make  the  court  and  jury  understand  them 
too.  His  addresses,  therefore,  to  the  jury,  or  what 
ever  tribunal  passes  upon  the  facts  ,in  stead  of  de- 
creasing in  importance,  are  slowly  becoming  more 
important,  while  the  law  is  simplifying,  the  facts 
and  details  of  cases  are  becoming  more  intricate. 
Such  is  the  natural  tendency  of  civilization.     Our 


ARGUMENT,  345 

business  transactions,  and  almost  everything  else 
connected  with  modern  life,  become  more  involved 
and  complicated.  This,  therefore,  lengthens  trials, 
and  it  lengthens  arguments  to  those  who  must  be 
made  to  understand  these  matters,  requiring  more 
and  more  time  to  be  understood.  Our  civilization 
having  long  used  juries  to  preserve  liberty,  protect 
our  other  rights,  and  educate  and  elevate  the  people, 
may  after  a  while  do  better  to  instrust  the  finding  of 
facts  to  other  deputies.  But  even  then,  there  will 
be  the  same  augmenting  complexity  of  human 
affairs,  and  the  same  necessity  of  their  most  patient 
study  by  those  who  would  discover  the  right.  A 
head  for  facts  and  details  is  better  for  the  practicing 
lawyer,  and,  paradoxical  as  it  may  seem,  better  too 
for  the  judge  than  a  head  for  the  law.  If  carefully 
contemplated,  the  surpassing  excellence  of  Lord 
Eldon's  decisions  will  be  found  to  be  in  his  com- 
plete mastery  of  every  detail,  however  trivial,  of  the 
case.  Of  course,  then,  that  counsel  would  have  the 
most  sway  of  this  great  chancellor,  who  could  best 
familiarize  him.  with  these  loved  particulars,  and 
make  him  see  them  in  their  true  analysis  and  group- 
ing. This  is  the  effectiveness  of  all  good  speaking, 
whether  long  or  short. 

It  is  told  of  the  subject  of  his  entertaining  bio- 
graphy by  Mr.  Parton,  that  "  Burr  valued  himself 


346  CONDUCT    OF    LITIGATION. 

little  upon  his  oratorical  powers,  and  he  used  to  say 
that  he  had  seldom  spoken  with  pleasure  or  satisfac- 
tion to  himself.  His  pleadings  at  the  bar  were  more 
in  the  style  of  conversation  than  oratory,  it  is  said ; 
the  conversation,  however,  of  a  well-bred,  thoroughly- 
informed  man  of  the  world.  He  never  declaimed. 
He  was  never  diffuse ;  a  long  speech  he  never  de- 
livered in  his  life.  In  concise,  precise,  and  therefore 
simple  language,  he  contrived  to  clothe  the  essential 
points  of  his  argument,  and  to  lodge  them  in  the 
mind  of  judge  and  jury  so  firmly,  that  no  bursts  of 
eloquence  from  the  other  side  could  remove  them. 
There  was  a  vein  of  quiet  sarcasm  in  some  of  his 
speeches  which,  it  is  said,  was  exceedingly  effective. 
With  a  manner  always  serious,  he  occasionally  rose 
to  be  impressive,  and  produced  effects  upon  the 
minds  of  his  hearers  that  were  long  remembered." 

The  shortness  of  Phocion's  speeches  is  cele- 
brated. "  Once  when  about  to  speak  in  public,  he 
was  observed  to  be  particularly  absorbed  in  thought. 
'  Vou  seem  meditative,  Phocion,'  said  a  friend.  '  Ay, 
by  Zeus,'  was  the  reply, '  I  am  meditating  whether  I 
can  not  in  some  way  abridge  the  speech  which  I  am 
just  about  to  address  to  the  Athenians.'  He  knew 
so  well,  however,  on  what  points  to  strike,  that  his 
telling  brevity,  strengthened  by  the  weight  of  char- 
acter and  position,  cut  through  the  fine  oratory  of 


ARGUMENT.  34; 

Demosthenes  more  effectively  than  any  counter- 
oratory  from  men  like  ^schines."  ' 

But  this  brevity  is  only  telling  because  it  pre- 
sents the  case.  And  speaking  is  purposeless  and 
ineffective  if  it  docs  not  facilitate  the  understandinof 
of  the  subject. 

The  first  duty  of  the  counsel  addressing  the  juiy, 
is  to  make  them  see  the  whole  case  made  by  the 
evidence.  Some  of  it  may  have  escaped  their 
attention.  Documents  may  have  been  put  in 
evidence  and  not  read.  But  it  is  not  necessary  that 
he  review  the  whole  case  at  the  outset  to  refresh  the 
jury's  recollection.  As  each  group  of  facts  is  presented 
in  its  natural  order,  it  will  generally  be  right  for  him 
to  state  clearly  any  testimony  belonging  to  it  which 
he  may  have  cause  to  believe  that  the  jury  does  not 
understand. 

The  purpose  of  a  speech  is  to  show  either  that 
vour  adversary  has  failed  to  prove  his  case,  or  that 
your  combinations  are  more  weighty  and  superior  to 
his.'  The  results  of  your  long  preparation,  and  all 
the  accumulations  of  the  trial  in  the  notes  added  to 
your  brief,  will  crowd  your  speech.  As  we  have 
often  said,  this  is  no  place  to  treat  of  the  law  of 
evidence.  That  manual  is  full  of  rules  for  weigh- 
ing testimony.  And  besides  there  is  a  wisdom 
'  Grote's  History  Greece,  chap.  Ixxxvii. 


348  CONDUCT    OF    LITIGATION. 

which  the  lawyer  must  have  which  is  not  learned 
from  books.  It  is  that  which  we  in  our  usual  talk 
call  common  sense.  This  quality  teaches  him  what 
to  believe  and  what  to  discredit.  The  caution  of 
Mr.  Cox  is  excellent : 

"  Remember  this  also,  that  juries  do  not  under- 
stand very  nice  distinctions  and  refined  arguments  ; 
they  usually  take  broad  views  of  a  case,  and  you 
should  endeavor  as  much  as  possible  to  meet  it  after 
their  fashion,  looking  at  it  broadly,  dealing  with  its 
most  prominent  features,  attacking  obvious  defects, 
and  treating  it  rather  as  a  matter  of  common  sense 
than  of  subtlety.  If  you  can  thus  deal  with  it  by  an 
appeal  to  their  common  sense,  and  it  offers  material 
for  you  to  make  its  insufficiency  plain  to  ordinary 
minds,  be  careful  not  to  quit  these  its  broad  and  ob- 
vious features  for  those  more  refined  and  delicate  dis- 
tinctions and  arguments,  which  are  intelligible  only 
to  an  intellect  as  refined  and  practiced  as  your  own  in 
the  discernment  of  minute  resemblances  and  differ- 
ences." ' 

There  is  little  left  for  me  to  say  in  this  chapter. 
The  mind  that  understands  a  good  preparation,  and 
has  kept  up  well  with  the  trial,  being  able  at  any 
time  to  strike,  as  it  were,  the  balance  between  the 
two  sides,  will  know  well  what  is  to  be  said,  for  the 
'  Adv.,  448. 


ARGUMENT.  349 

speech  at  the  bottom  is  but  a  presentation  of  these 
things.  And  the  object  of  your  address  will  be  to 
explain  fully  your  case,  showing  that  the  case  of 
your  adversary  is  but  illusory.  When  you  have 
made  the  jury  and  the  court  see  clearly  the  supe- 
riority of  )''our  side,  you  have  done. 

Argument  should  be  exhaustive,  without  being 
wearisome.  But  in  intricate  mazes  of  evidence, 
where  conflict  is  piled  on  conflict,  you  must  often 
draw  largely  on  the  patience  of  your  auditors.  It  is 
their  duty  to  hear  you,  and  it  is  your  province  to 
make  them  understand  all  of  your  case.  The  great 
RuFUs  Choate  said  :  "  I  have  been  so  often  disap- 
pointed in  the  sudden  turn  which  jurors'  minds  take, 
I  have  proved  them  false  on  such  trivial  points  that, 
as  I  grow  older,  I  argue  every  point,  even  at  the 
risk  of  tedium." ' 

The  subject  of  elocution  is  foreign  to  this  work. 
I  can  not,  however,  refrain  from  recommending  the 
wise  counsel  given  by  Whately  in  his  "  Rhetoric," 
as  to  the  adoption  of  the  natural  manner  in  speak- 
ing, and  the  still  more  scientific  views  of  Bautain, 
in  his  "  Art  of  Extempore  Speaking."  These  two 
authors  with  great  brevity  and  clearness  set  forth 
more  of  value  than  I  have  seen  in  all  other  books. 
They  are  worth  to  the  modern  who  would  undcr- 
'  Reminiscences,  502. 


350  CONDUCT    OF    LITIGATION, 

stand  the  needs  and  essentials  of  extempore  speak- 
ing, a  hundred  fold  more  than  Cicero,  Quintilian, 
and  Aristotle. 

The  tricks,  deception,  and  excitation  of  the  lower 
passions  by  speaking,  as  Shakespeare  represents 
Antony  making  turncoats  of  the  mob  of  Rome  on 
the  spot,  and  then  triumphing  to  himself  over  his 
achievement,  are  no  longer  potent.  Our  Pinkneys 
and  Websters,  by  reason  of  the  fullest  and  most 
precise  and  accurate  knowledge  of  their  cases,  con- 
vinced the  understanding  rather  than  aroused  the 
feelings.  And  the  reader  of  the  far-famed  speeches 
of  Erskine,  which  we  rejoice  were  so  carefully  cor- 
rected by  himself,  sees  that  his  wonderful  power  was 
in  the  mastery  of  his  case.  He  understood  all  the 
facts  and  details.  We  have  already  called  attention 
to  the  careful  note-taking  of  Choate,  and  his 
industrious  revision  of  his  notes  every  night  during 
the  trial. 

The  secret  of  good  speaking  and  even  of  eloquence, 
will  be  found  in  the  due  attention  to  those  duties  of 
preparation  and  conduct  of  the  trial,  to  which  we 
have  already  devoted  so  much  space.  It  is  only 
now  and  then  that  a  case  is  won  by  a  speech. 
Occasionally  a  jury  is  deceived  into  a  finding  which 
should  be  set  aside,  by  the  oily  tongue  of  some  wily 
talker.     But    the  narrowing  province    of  eloquence 


ARGUMENT.  351 

at  the  bar,  is  in  those  cases  where  public  feeling  and 
sympathy  are  against  the  right.  For  success  in 
these  difficult  cases  I  can  give  no  sure  recipe. 
Courage,  persistence,  and  the  most  careful  prepa- 
ration, demonstrating  the  right  over  and  over,  if 
possible,  should  precede  the  speech.  In  the  ordinary 
average  of  cases,  one  lawyer  of  fair  speaking  ability  is 
about  as  effective  as  another.  But  there  are  cases 
such  as  we  have  just  mentioned,  which  should  be 
argued  by  the  best  speaker  accessible.  Any  sound 
and  cool-headed  lawyer  will  know  how  to  select  him. 

The  motto  of  the  advocate  should  be,  to  see  to 
It  that  he  lost  no  good  case.  That  was  high  praise 
bestowed  on  the  great  lav/yer,  when  it  was  said  of 
him  that  he  could  not  win  a  bad,  nor  lose  a  good 
one.  No  advocate  should  ever  throw  off  his  alle- 
giance to  law  and  justice.  He  is  a  lawyer.  Even 
when  defeated,  if  the  law  is  administered,  he  should 
rejoice.  The  following  picture  by  Lord  Campbell 
of  the  King's  Bench,  under  the  auspices  of  Chief 
Justice  Abbott,  should  be  carefully  meditated  : 

"  Before  such  men  [Littledale,  Bayley,  Holroyd, 
besides  the  Chief  Justice]  there  was  no  pretense  for 
being  lengthy  or  importunate.  Every  point  made 
by  counsel  was  understood  in  a  moment,  the  appli- 
cation of  every  authority  was  discovered  at  a  glance, 
<-he  counsel  saw  when  h6  might  sit  down,  his  case 


352  CONDUCT    OF    LITIGATION. 

being-  safe,  and  when  he  might  sit  down,  all  chance 
of  success  for  his  chent  being  at  an  end.  I  have 
practiced  at  the  bar  when  no  case  was  secure,  no 
case  was  desperate,  and  when  good  points  being 
overruled,  for  the  sake  of  justice  it  was  necessary 
that  bad  points  should  be  taken ;  but  during  that 
golden  age,  law  and  reason  prevailed ;  the  result  was 
confidently  anticipated  by  the  knowing  before  the 
argument  began,  and  the  judgment  was  approved  by 
all  who  heard  it  pronounced,  including  the  vanquished 
party.  Before  such  a  tribunal  the  advocate  becomes 
dearer  to  himself  by  preserving  his  own  esteem, 
and  feels  himself  to  be  a  minister  of  justice  instead 
of  a  declaimer,  a  trickster,  or  a  bully.  I  do  not 
believe  that  so  much  important  business  was  ever 
done  so  rapidly,  and  so  well,  before  any  other  court 
that  ever  sat  in  any  age  or  country." 

Of  course  zeal  for  our  clients  will  often  pull  the 
most  cool-headed  away  from  the  apparent  right  and 
justice  of  the  case.  But  the  advocate  should  so  bear 
himself,  that  he  can  feel  at  the  close  of  his  career, 
that  in  all  of  his  arguments  he  has  been,  to  use 
Lord  Campbell's  words  again,"  a  minister  of  justice, 
instead  of  a  declaimer,  a  trickster,  or  a  bully."  The 
law  does  not  expect  him  to  blacken  good  character, 
defeat  justice,  and  make  the  wrong  triumph.  He 
should  not  debase  his  nature  by  trying  to  pervert  the 


ARGUMENT.  353 

truth.  His  influence  and  power  and  sway,  even  in 
speaking,  will  grow  with  his  increasing  years,  if  his 
hearers  have  found  out  that  when  he  rises  he  says 
only  that  which  he  believes.  There  is  nothing  which 
can  vanquish,  in  the  average  of  cases  at  the  bar,  accu- 
rate insight  coupled  with  perfect  honesty.  He,  who 
from  first  to  last  of  a  long  trial,  never  gets  the  mi- 
nutest part  of  the  testimony  wrong,  and  who  neither 
suppresses  nor  misstates  anything,  who  goes  over  all 
of  the  proof,  giving  the  substance  so  accurately  that 
no  good  man  of  sufficient  mind  to  understand  it  can 
dispute  with  him,  is  a  dangerous  advocate  at  Nisi 
Prius.  He  is  soon  found  out  where  he  practices, 
and  if  honest,  as  we  have  already  said,  court,  jury 
and  bar  begin  to  lean  on  his  superior  poweis.  The 
most  skillful  adversary  may  have  the  last  word  to 
the  jury ;  but  at  the  first  misstatement  of  material 
testimony,  the  spell  and  charm  of  oratory  are  broken 
under  the  inevitable  and  irresistible  correction. 

We  have  said  all  that  we  care  to  say  on  this 
subject.  Of  course  the  speaker  will  make  ample  use 
of  his  brief  and  his  notes  of  the  trial,  of  the  sugges- 
tions of  his  associates,  and  will  thus  say  all  that  he 
should  say.  The  plan  of  his  speech  should  be 
sketched  on  paper,  and  firmly  grasped  in  his  head, 
and  nothing  but  some  overruling  justification  should 

make  him  depart  from  it 
23 


CHAPTER    IX. 


NEW    TRIAL    AND    APPEAL. 


ArTER  the  argument,  you  will  diligently  note 
the  instructions  of  the  court  to  the  jur}'-.  You  will 
also,  in  case  of  an  adverse  verdict,  see  if  there  is 
any  ground  of  arrest  of  judgment.  Our  pleading, 
however,  is  fast  becoming  so  untechnical  and  inar- 
tificial, that  the  motion  in  arrest  has  almost  dis- 
appeared save  in  the  criminal  practice. 

If  you  are  satisfied  that  you  have  not  received 
justice  in  the  verdict,  you  will,  if  you  conceive  that 
you  have  valid  grounds,  move  for  a  new  trial.  But 
you  should  here  exercise  the  same  deliberation 
which  we  have  advised  you  to  use  over  a  case 
offered  you.  The  courts  lean  strongly  against  new 
trials,  and  you  must  be  able  to  show  some  valid  and 
material  complaint,  either  against  the  action  of  the 
court  or  the  jury,  before  you  may  hope  to  secure 
another  hearing.  Your  client  will  be  controlled  b)- 
you,  and  you  will  find  it  to  be  generally  right  not  to 
encourage  him  to  strive  for  a  new  trial,  if  you  can 
see  that  the  verdict  is  the  result  of  no  partiality,  nor 
mistake  nor  misdirection. 


NEW    TRIAL    AND    APPEAL.  355 

But  oftentimes  you  have  been  unexpectedly 
pushed  into  a  trial,  or  there  is  a  strong  and  partial- 
izing-  prejudice  against  your  client,  or  the  jud^c 
enlists  against  you,  and  life,  or  liberty,  or  fortune 
are  at  stake,  and  you  see  clearly  that  your  case 
is  in  great  peril  Here  you  have  need  of  all  you] 
coolness,  ingenuity,  and  quickness.  And  your  fight 
will  be  not  so  much  for  the  verdict,  almost  hopeless, 
but  for  a  good  ground  of  new  trial.  You  must 
catch  the  court  napping,  or  trap  your  adversary,  or 
so  strengthen  your  case  on  some  cardinal  point  of 
fact,  that  an  adverse  verdict  must  be  set  aside. 

You  have  kept  notes  of  the  trial,  and  have,  if  it 
was  long,  revised  them  every  night.  In  these  you 
have  a  record  of  the  objections  you  have  taken  to 
testimony,  of  exceptions  to  rulings  of  the  court,  and 
of  everything  else  which  may  now  profit  you.  And 
you  have  not  neglected  the  privilege  which  the 
local  law  often  gives  you,  of  praying  specific  in- 
structions from  the  court,  or  of  requiring  his  whole 
charge  to  be  in  writing.  And  you  have  time,  too, 
to  scan  the  too  favorable  instructions  which  perhaps 
your  over-eager  adversary  has  got  from  a  judge  too 
gracious.  Nor  will  you  fail  to  make  scrutiny  into 
the  conduct  of  the  jury,  and  avail  yourself  of  any 
good  cause  which  you  may  find  there.  We  have 
all    along   reminded   the    reader   that   we   are    not 


356  CONDUCT    OF    LITIGATION. 

writing  a  law  treatise.  So  we  will  not  stop  to  di- 
gest the  various  grounds  of  new  trial.  We  take  it 
for  granted  that  the  reader  knows  them.  It  is  our 
province  to  enforce  upon  him  here,  as  we  have 
everywhere  else,  the  great  advantage  and  wisdom  of 
an  intelHgent  purpose.  We  have  already,  in  one  of 
our  chapters  on  Plan  of  Conduct,  noted  the  duty  of 
the  lawyer  in  preparing  his  case,  to  have  an  eye  to 
securing  a  new  trial  should  he  lose  the  verdict,  just 
as  a  prudent  general  endeavors  before  the  battle  to 
provide  himself  with  a  sure  way  of  retreat. 

But  for  all  of  your  careful  anticipation,  most  of 
your  best  grounds  of  new  trial  will  occur  to  you  un- 
expectedly. You  must  have  the  wit  to  know  them 
as  they  happen.  And  at  the  soonest  possible  moment 
after  the  verdict,  decide  upon  what  grounds  you  will 
move,  and  then  at  once  procure  the  necessary  au- 
thentication. Nowhere  is  procrastination  more  hurt- 
ful in  the  practice  of  the  lav/.  Only  wait  a  few 
v^^eeks  after  a  trial,  and  the  judge  has  lost  his  notes, 
or  if  he  has  been  too  lazy  to  take  any,  he  has  for- 
gotten everything ;  your  adversaria's  memory  is 
often  counter  to  yours,  and  you  may  see  with 
chagrin  that  a  good  case  has  been  lost  by  your  sloth 

I  have  often  fancied,  while  reading  history,  how 
eagerly  some  defeated  general  would  have  caught 
at  -^.r  opportunity  t;)  renew  the  lost  battle,  with  all 


N£IV     TRIAL    AND    APPEAL.  357 

his  wounded  healed,  and  his  killed  raised  from  the 
dead  Varro  would  have  doubtless  rejoiced  to 
try  Cannae  over,  believing  that  he  could  not  again 
lose  so  tremendously.  In  the  respect  of  a  new  trial, 
litio^ation  has  an  attractive  diversification  to  which 
warfare  has  nothing  corresponding.  Often  liberty 
and  right  would  win,  if  they  could  only  have  a  new 
battle  ;  but  they  can  not  have  it.  But  in  forensic 
contest,  triumphant  wrong  is  again  and  again  sub- 
verted under  shameful  defeat,  by  the  same  force 
which  it  had  vanquished  before. 

Nothing  is  more  admirable  than  the  spirit  of  a 
discerning  lawyer,  who  will  not  endure  in  a  good 
case  an  oppressive  ruling  or  a  partial  verdict.  He 
seems  to  know  by  divination  when  he  can  have  the 
one  reversed,  and  the  other  set  aside.  After  such  a 
defeat,  he  no  more  doubts  the  final  success  of  his 
case,  than  the  famous  refugee  farmer  of  old  would 
take  a  less  price  for  his  farm,  because  it  was  then 
occupied  by  the  army  of  the  victorious  enemy. 

The  books  will  tell  you  when  to  dispense  with  a 
motion  for  a  new  trial,  and  rely  only  on  a  bill  of  ex- 
ceptions. I  suggest  to  you  that  you  always,  when 
you  can,  give  a  jildge  opportunity  of  correcting  his 
errors.  If  you  are  convinced  that  the  error  is 
serious,  show  it  to  him  clearly  in  arguing  your  mo- 
tion, and  if  you  can,  give  him  time  to  reflect     By 


558  CONDUCT    OF    LITIGATION. 

pursuing  this  course,  you  will  often  secure  a  new 
trial,  when  if  you  neglect  it,  you  will  not.  For 
Courts  of  Errors  always  attach  great  importance  to 
the  action  of  the  judge  below.  If  he  is  dissatisfiea 
with  the  finding  and  sets  it  aside,  they  will  rarely 
disturb  his  judgment. 

To  sum  up,  then:  (i)  Have  an  eye  in  your 
preparation  to  provide  for  a  new  trial.  The  pecu- 
liarities of  the  judge,  your  adversary,  and  many  other 
things  will  be  suggestive.  (2)  During  the  trial,  be 
always  on  the  alert  to  secure  a  good  ground,  re- 
membering that  Providence  helps  those  who  help 
themselves.  (3)  So  soon  as  you  can,  after  the  ad- 
verse verdict,  if  you  decide  not  to  succumb,  review 
carefully  the  whole  track  of  the  trial,  collect  your 
grounds  and  the  evidence,  and  have  them  certified. 

We  now  leave  the  subject  of  New  Trial  with  a 
word  or  two.  One  of  the  uses  of  the  remedy  is  to 
insure  justice  not  only  to  parties,  but  to  lawyers, 
I  am  strong  in  the  opinion  that  no  lawyer  ever  loses 
anything  by  refusing  to  submit  to  a  bad  verdict  or 
an  oppressive  ruling,  even  if  he  resists  at  his  own 
cost.  We  must  teach  our  equals  of  the  Bar,  and  our 
superiors  of  the  Bench,  and  the  people,  a  wholesome 
respect  for  our  pluck  and  ability. 

My  next  suggestion  is  that  you  rein  in  yourself 
during  the  trial,  where  you  feel  that  you  have  the 


NEW    TRIAL    AND    APPEAL.  359 

upper  hand ;  and  that  you  likewise  check  and  hold 
back  the  judge  who  seems  to  en  ist  for  you,  that 
you  may  give  your  watchful  adversary  no  oppor- 
tunity to  undo  your  victory  when  you  gain  it. 

And  my  last  word  is  that  you  take  all  good 
points.  Of  course  the  small,  and  the  little,  and  the 
trivial,  you  will  none  of.  But  throv/  away  none 
of  your  good  chances. 

The  young  lawyer  generally  first  makes  his 
mark  by  showing  spirit  and  capacity  to  reverse  a 
careless  or  disrespecting  judge. 

And  now  wishing  you  success  before  the  Court 
of  Errors,  if  your  judge  refuses  you  a  new  trial,  and 
hoping  that  when  you  try  again  you  will  surprise 
your  adversary  with  a  new  presentment  and  group- 
ing of  your  old  case,  which  we  sometimes  call  a 
new  line,  I  take  my  leave  of  you,  for  there  is  so 
little  additional  to  say  about  Appeal  that  I  shall 
say  nothing. 


CHAPTER  X. 


VICTORY  AND  DEFEAT. 


If  anything  remains  after  the  verdict,  or  its 
affirmance  in  the  Court  or  Errors,  to  be  done  to 
assure  the  fruits  of  the  victory,  of  course  it  must  be 
energetically  done.  Negligence  and  supineness 
may  make  triumph  empty. 

I  once  witnessed  a  trial  of  a  seduction  case, 
which  was  conducted  admirably,  and  argued  with 
such  zeal  and  eloquence  for  the  plaintiff,  that  the 
jury  found  large  exemplary  damages.  The  success- 
ful counsel  went  home,  and  when  he  had  been  there 
a  few  weeks,  he  heard  that  the  defendant  had  left 
the  state.  He  hurried  down  to  the  county-seat,  and 
went  into  the  office  of  the  defendant's  lawyer,  and  as 
soon  as  their  salutations  were  over,  the  first  asked 
where  was  the  defendant ;  the  other  replied  that  he 

had  gone  to ,  a  city  in  a  distant  state.     And  why 

had  he  gone  was  asked  again,  when  his  host  in- 
formed him  gravely  that  the  defendant  had  gone  to 
that  city  to  attend  the  General  Assembly  of  the 
Presbyterian  Church  which  was  then  sitting  there 
and  went  on  to  remind  his  visitor  that  tlie  defend- 


VICTORY    AND    DEFEAT.  361 

ant's  family,  his  mother  and  sisters,  were  zealous 
Presbyterians.  The  bird  had  flown.  The  plaintiff"'s 
lawyer  made  effort  to  subject  some  property  for- 
merly owned  by  the  defendant,  but  he  failed  utterly. 
Had  he  ordered  the  defendant  taken  in  execution  at 
once  after  getting  the  verdict,  he  would  not  have 
lost  his  fee,  as  he  doubtless  did. 

And  when  you  are  on  the  losing  side,  it  will 
often  require  great  moral  courage  to  advise  submis- 
sion to  the  inevitable.  We  have  more  than  once 
before  this  reminded  you,  that  you  should  discourage 
all  useless  strife.  Hannibal  was  as  great  in  influenc- 
ing his  vanquished  countrymen  to  make  peace  with 
the  R.omans,  as  he  was  before  at  Cannae.  When 
you  see  inevitable  defeat  approaching,  get  the  best 
terms  that  you  can,  and  control  your  client.  I  have 
seldom  known  any  real  disagreement  between  a  law- 
yer and  his  client.  The  trouble  is  generally  in  the 
eagerness  of  the  lawyer  to  win,  and  in  his  moral 
cowardice  to  give  wholesome  but  unpalatable  advice. 
But  we  can  no  more  than  other  men  achieve  impos- 
sibilities. The  vain  counsel  who  believes  that  he 
can  win  any  case,  is  fated  to  meet  with  disaster  after 
disaster,  and  can  never  stand  well  with  the  practical 
men  who  have  the  most  business  and  money  for  a 
lawyer. 

We  sum    up   this   short    chapter,  in  saying  (i) 


362  CONDUCT    OF    LITIGATION. 

push  your  victories,  and  (2)  capitulate  in  your  un- 
maintainable cases  on  the  best  terms  possible.  Be 
not  a  party  nor  an  inflamed  partisan  —  but  strive  to 
set  to  all  of  your  clients  an  example  of  obedience 
to  law. 


FINAL  CHAPTER. 

CHARACTER  OF  THE  SUCCESSFUL  LAWYER. 

Our  two  Books  have  been  devoted  to  enucleat- 
ing and  exemplifying  the  principles  of  right  conduct 
of  litigation.  We  have  here  and  there,  in  various 
places,  casually  let  fall  many  hints  as  to  the  different 
traits  and  qualifications  of  the  successful  lawyer.  It 
is  now  time  that  we  make,  even  at  the  cost  of  some 
repetition,  a  full  delineation  of  him  who  is  to  skill- 
fully and  efficiently  use  our  counsels  in  the  practice 
of  the  law. 

The  successful  practicer  differs  as  much  from  the 
author  of  able  and  learned  legal  treatises,  as  a  good 
farmer  differs  from  a  profound  agricultural  chemist. 
The  principles  of  law  or  of  chemistry  are  of  the  first 
importance  to  the  legal  or  scientific  author,  and  he 
bends  all  things  to  their  proper  presentation.  But 
the  lawyer  only  uses  his  books  to  win  his  case,  just 
as  Mr.  Mechi.the  foremost  English  farmer,  only  asks 
of  Baron  Liebig  how  remunerative  crops  may  be 
made. 

As  we  have  detected  many  resemblances  of  liti- 
gation   to  w^arfare,  our   readers   have    doubtless    al- 


364  CONDUCT    OF    LITIGATION. 

ready  suspected  that  he  who  conducts  litigation— 
that  is  the  practicing  lawyer — is  in  many  points  of 
character  like  him  who  conducts  warfare — that  is, 
the  general. 

Here  is  Marmont's  analysis  of  the  general,  taken 
from  the  celebrated  "  Spirit  of  Military  Institutions"- 

"  The  art  of  war,  considered  as  to  what  constitutes 
the  profession,  is  entirely  combination  and  calculation. 

"Two  things  are  requisite  in  a  general :  intelligence 
and  firmness.  The  former,  because  without  that 
there  are  no  combinations ;  at  the  outset  the  army 
is  defenseless.  The  latter,  because  without  a  strong 
and  tenacious  will,  the  execution  of  the  plans  con- 
ceived can  not  be  assured.  But  here  relative  quali- 
ties govern  absolute  qualities ;  firmness  must  rule 
intelligence.  In  this  relation  is  found  the  element 
of  success.  If  we  desired  to  estimate  by  figures  each 
of  these  faculties,  I  should  much  prefer  a  general 
possessing  intelligence  as  5,  and  firmness  as  10,  to 
one  having  intelligence  as  15,  and  firmness  as  8. 
When  firmness  governs  intelligence,  and  mind  has  a 
certain  rano-e,  we  move  alonsf  towards  a  defined  aim 
and  have  chances  of  attaining  it.  When  the  reverse 
is  the  case,  opinions,  plans,  and  direction  are  changed 
unceasingly,  be  cause  avast  intelligence  at  every  in- 
stant considers  the  questions    under   a  new  aspect. 


CHARACTER     OF     THE    LAWYER.        365 

If  force  of  will  does  not  secure  us  from  these 
changes,  we  float  among  the  different  schemes, 
adopting  nore  definitely  (the  worst  feature  of  all), 
and  instead  of  approaching  the  goal,  a  shuffling 
march  often  leads  us  away  from  it,  and  we  are  lost 
in  wanderings. 

"  And.  yet  the  conclusion  would  be  wrong  that 
there  is  no  need  of  much  mind  to  accomplish 
great  ends.  A  mediocre  mind  is  not  to  be  found  in 
any  of  the  great  generals  of  antiquity  or  of  modern 
times — in  any  of  the  great  historic  names  which 
march  through  the  centuries  above  their  fellows. 
Alexander,  Hannibal,  Scipio,  Caesar,  possessed  the 
highest  faculties  of  intellect.  It  was  the  same  with 
the  great  Conde,  Luxembourg,  the  great  Eugene, 
Frederick,  and  Napoleon,  But  all  these  great  men 
to  a  superior  mind  added  still  more  strength  of 
ch  aracter." ' 

The  celebrated  author  means  that  the  general  is 
a  man  more  of  action  than  contemplation,  and  there- 
fore force  of  will,  which  prompts  to  action,  must  be 
in  his  character  in  excess  of  intelligence,  or  force  of 
intellect,  which  prompts  to  contemplation.  The 
genius  of  the  lawyer  and  of  the  general  is  practical, 
while  that  of  the  great  law  author  and  eminent 
military  writer  is  contemplative.  The  lawyer  shows 
*  Coppee's  Trans.  252,  et  seq.  (Philadelphia,  1S62.) 


366  CONDUCT    OF    LITIGATION. 

his  genius  in  preparing  and  trying  cases,  and  the  law- 
author  shows  his  special  gifts,  in  deciding  whether 
the  decision  of  the  case  tried  is  right  or  wn^ong. 
And  the  judge,  in  that  his  genius  is  practical  too,  is 
more  like  the  practicer  than  he  is  like  the  author. 
Both  judge  and  lawyer  decide  legal  questions  in  the 
same  way,  and  by  the  exercise  of  tne  same  facul- 
ties. The  lawyer  must  be  the  quicker  of  apprehen- 
sion, and  more  inventive.  He  must  not  only  decide 
on  a  case  presented,  but  he  is  also  in  its  conduct 
to  do  something  else  which  never  troubles  the  judge  : 
that  is,  he  must  select  the  questions  to  present.  He 
selects,  presents,  and  argues,  and  then  the  judge  de- 
cides. Both  the  judge  and  the  successful  lawyer  are 
inferior  to  the  great  law-author  in  deep  and  scientific 
knowledge  of  the  law,  but  they  have  a  marvelously 
ready  command  of  the  legal  principles  that  are  ordi- 
narily applied,  where  the  one  presides  and  the  other 
practices.  These  principles  they  use  as  tools,  and 
their  expertness  with  them  is  often  astonishing.  No 
author  has  ever  undertaken  to  give  a  complete 
enumeration  and  exposition  of  these  legal  principles 
of  common  application.  But  we  know  that  their 
number  is  not  infinite.  No  man  can  be  said  to 
possess  the  whole  of  them.  Yet  there  are  members 
of  the  Bar  who  lead  in  all  important  causes,  by  the 
spontaneous  homage  of  every  associate,  and  judges 


CHARACTER     OF     11111     LAWYER.        367 

born  to  decide  aright,  who  do  almost  understand 
thoroiighlv  most  of  them.  Note  one  of  these 
lawyers  tr}dng  a  case.  Every  exception  or  point 
that  he  takes,  even  if  not  well  taken,  he  supports  by 
some  principle  which  you  can  not  controvert,  though 
you  may  show  that  he  is  misapplying.  It  would 
frequently  puzzle  him  were  you  to  gravely  demand 
of  him  authority  for  some  rule  which  he  assumes. 
Such  rides  of  law — that  is,  those  controlling  the 
average  of  cases — are  allowed  as  soon  as  cited,  and 
the  superiority  of  the  practitioner  is  quickness  in 
seeing  what  rule  decides  a  case  presented.  He  does 
not  learn  this  as  much  from  books  as  a  great  man)'' 
believe.  He  learns  nearly  all  of  this  mastery  of  law, 
by  practicing  law.  The  books  contribute  to  his 
professional  education,  but  their  contributions  are 
mainly  the  rules  of  law  which  he  plays  with  as  his 
counters ;  his  easy  command  of  these  rules  is  not 
learned  from  books,  as  the  knowledge  of  the  great 
law-author  is  acquired.  But  this  dominion  and  sway 
of  principles,  this  practical  wisdom  in  the  law,  come 
from  whatever  quarter  it  may,  is  a  necessary  and 
important  element  in  the  composition  of  the  success- 
ful lawyer. 

But  although  tnis  element  is  so  important  that 
the  lawyer  derives  his  name  from  it,  there  is  another 
intellectual  element  in  his  composition  of  still  more 


368  CONDUCT    OF    LITIGATION. 

importance,  namely, — a  head  for  facts  and  details. 
We  can  make  ourselves  plain  here  without  being 
very  profound.  Details,  when  numerous,  must  be 
systematized  to  be  understood ;  that  is,  they  must 
be  decomposed  into  their  component  elements,  and 
then  appropriately  arranged.  The  particulars  found 
to  be  like  each  other  will  be  thrown  together  into 
groups,  and  the  groups  will  be  next  collocated  in 
true  rational  order.  Take,  as  an  instance,  an  author 
at  work  digesting  a  series  of  law  reports.  He  reads 
a  case,  and  picking  out  the  points,  he  puts  each  one 
under  its  proper  head  in  the  accepted  vocabulary  of 
the  law.  This  illustration  is  very  nearly  the  same 
as  the  work  which  the  lawyer  must  do  with  the  de- 
tails put  in  his  possession  by  his  client.  The  facts, 
the  details,  be  they  the  jarring  and  conflicting  testi- 
mony of  many  witnesses,  or  a  pile  of  documents 
more  conflicting  still,  must  be  first  analy^jed,  and 
then  rightly  generalized,  in  order  that  the  lawyer 
may  discover  what  case  they  make.  And  this  is 
the  talent  of  the  historian,  who  reads  the  times 
long  past  aright,  piercing  the  haze  and  fog  of  con- 
temporary writers.  And  it  is  the  talent,  too,  of  the 
scientific  man,  the  skill  and  glory  of  Newton  and 
Herschel.  To  analyze  aright,  and  then  classify 
aright,  is  the  particular  talent  of  them  all.  The 
lawyer  develops  it  more  and  more,  and  he  cultivates 


CHARACTER     OF     THE     LAWYER.        369 

it  more  exclusively.  You  vvik  find  him,  as  he  grad- 
ually shoots  up  into  leadership,  studying  law  less 
in  the  books  as  a  daily  set  exercise,  and  giving  the 
best  hours  of  his  time  to  familiarizing  himself  with 
the  particulars  of  his  cases.  He  will  often  make  an 
elaborate  preparation  without  looking  into  any  law 
more  recondite  than  a  few  of  the  local  statutes,  or 
some  of  the  local  decisions  which  he  has  found  an- 
notated on  them.  The  older  he  grows,  the  less 
authority  he  reads,  even  to  the  court  of  last  resort. 
When  you  contemplate  him  closely,  you  will  see 
that  his  great  business  is  not  with  law  as  a  science, 
but  with  the  facts  and  details  of  his  cases,  which, 
when  he  has  properly  grasped  and  presented,  he  has 
many  times  little  need  for  books. 

Now,  before  we  move  on,  we  will  briefly  recapit- 
ulate. There  are  two  intellectual  elements  of  the 
lawyer :  one  a  head  for  the  law,  and  the  other  a 
head  for  facts.  His  command  of  law  must  be  a 
facility  in  the  application  of  its  rules  in  common 
use.  He  must  not  only  be  quick  to  think  of  the 
right  rule,  but  he  must  be  able  to  quickly  apply  it, 
and  demonstrate  the  soundness  of  the  application. 
But  the  other  element  is  the  more  important.  It  is 
that  talent  which  teaches  the  lawyer  what  case  the 
facts  make.     The    lawyer  who  sees  this  case  often 

condescends  to  get  his  authority  from  an  inferior 
24 


370  CONDUCT    OF    LITIGATION. 

There  are  many  jackals  of  the  law  in  the  profession, 
who  hunt  down  and  capture  the  needed  authority 
for  the  lions  of  facts.  But  these  two  intellectual 
elements  a  man  must  have  to  be  a  lawyer. 

Now,  the  intellectual  root,  which  branches  out 
into  both  of  the  talents  which  we  have  been  describ- 
ing, is  insight.  Sometimes  we  call  it  acumen. 
This  vision  of  the  truth,  either  of  facts  or  of  the  con- 
trolling legal  principle,  is  the  community  of  the  two 
faculties  of  the  lawyer.  And  this  intuitive  percep- 
tion has  been  long  recognized  as  a  sine  qua  iion  of 
all  genius.  Lord  Bacon  recognized  its  dominant 
importance  when  he  said :  ''Prudens  intcrrogatio 
quasi  di^nidiuvi  scientics"  which  he  translated — "  A 
faculty  of  wise  interrogating  is  half  a  knowledge  "  ; 
and  he  cited  a  2;reat  authority  when  he  continued  : 
"  For  as  Plato  saith, '  Whosoever  seeketh,  knoweth 
that  which  he  seeketh  for  in  a  general  notion,  else 
how  shall  he  know  it  when  he  hath  found  it.' 
When  Napoleon  said  that  the  art  of  war  was  all  in 
being  the  stronger  on  a  certain  point,  he  implied  for 
the  successful  general  ability  to  see  what  was  the 
decisive  point,  and  also  how  he  could  be  stronger 
on  that  point.  And  the  lawyer  must  likewise  divine 
the  controlling  points  of  the  case,  and  he  must,  be- 
sides, see  how  he  can  have  the  ascendency,  if  it  is 
possible,  on  these.     This  intellectual  vision  precedes 


CHARACTER     OF     THE     LAWYER.         371 

any  action,  for  it  dictates  action.  How  often  we 
hear  the  phrase  used  of  some  blundering  arguer  in 
court,  '  he  does  not  see  the  point."  Now  this  well 
illustrates  the  perception  of  which  we  speak. 

We  will  give  from  Mr.  Bishop's  "  First  Book  of 
the  Law,"  an  interesting  example,  to  show  the  im- 
portance of  accurate  insight : 

"  Some  years  ago,  a  deputy-collector  in  one  of 
our  custom-houses  was  bribed,  and  he  procured  per- 
mits for  the  landing  of  large  quantities  of  foreign 
goods,  on  which  duties  were  not  in  fact  paid.  The 
permits  bore  the  genuine  signature  of  the  proper 
officer,  they  were  in  all  respects  coiTcct  in  form,  and 
all  the  formalities  attending  any  case  of  regularly 
passing  goods  through  the  custom-house  were 
gone  through  with.  After  the  fraud  was  discovered, 
some  of  the  goods  were  seized  by  the  collector ;  but 
on  looking  into  the  statutes,  he  found  no  one 
which  seemed  to  meet  the  case.  There  was  an 
enactment  against  landing  goods  without  a  permit, 
and  there  were  various  provisions  for  particular 
irregularities  by  the  importer,  in  passing  his  goods 
through  the  custom-house.  The  collector,  there- 
fore, after  getting  all  the  legal  advice  he  could,  and 
finding,  as  it  was  supposed,  no  statute  to  meet  the 
case,  gave  back  the  goods  he  had  seized,  and  con- 
cluded nothing  could  be  done.     Some  of  the  goods 


372  CONDUCT    OF    LITIGATION. 

were  taken  to  other  collection  districts,  and  elTorts 
were  there  madj  to  hold  them  ;  the  various  legal 
advisers  of  the  government,  and  other  lawyers 
called  in,  had  consultations,  and  it  was  determined 
definitely  that  nothing  could  be  done. 

"  In  this  state  of  thing-s,  some  dealers  in  the 
same  kind  of  goods,  finding  they  were  undersold  by 
the  holders  of  goods  on  which  no  duties  had  been 
paid,  went  to  counsel  who  had  not  been  in  the 
other  consultations.  These  persons  were  thereupon 
advised  that  if  the  collector  would  make  a  fresh 
seizure,  the  goods  could  be  held.  This  was  done 
When  the  case  came  before  the  court,  it  was  seen 
that  the  new  counsel  had  presented  it  as  an  ordinary 
one  of  smuggling,  just  as  though  there  had  been  no 
permit  issued ;  in  other  words,  the  very  existence  of 
the  permit  was  ignored.  And  when  the  defendant 
brought  forward  the  permit  for  his  protection,  it 
was  simply  shown  to  have  been  procured  by  the 
fraud  of  bribing  the  deputy-collector :  rendering  it 
in  law  a  nullity.  .  .  .  As  soon  as  this  legal 
principle  was  suggested,  the  whole  scene  was  made 
light.  The  result  was  that  without  further  difficulty 
a  decision  was  obtained  from  the  court,  pronoun- 
cing the  goods  to  be  smuggled.  The  goods  in  the 
other  districts  were  also  seized  and  confiscated."  ' 
'  Bishop's  First  Book,  §§  124-125 


CHARACTER     OF    THE    LAWYER.        373 

This  counsel  last  consulted,  to  use  the  common 
colloquialism  of  the  Bar,  saw  the  poiJit  which  the 
others  had  not  seen.  And  the  case,  besides  illus- 
trating the  command  of  the  rules  of  law  usually 
administered  in  the  courts,  that  the  successful  prac- 
titioner must  have,  also  exemplifies  the  superiority 
of  that  insight  or  acumen,  which  is  the  main 
intellectual  ingredient  in  the  composition  of  every 
lawyer  born  to  lead.  Nothing  could  be  more 
familiar  and  hackneyed,  than  the  principle  which 
the  triumphant  counsel  invoked.  When  he  an- 
nounced it,  even  the  laymen  in  court  doubtless  sav/ 
that  he  was  right.  It  was  another  Qg^  of  Columbus. 
And  to  brightly  elucidate  that  which  seems  dark 
and  intricate,  with  some  homely  legal  principle,  is 
what  the  good  lawyer  does  eveiy  day.  And  his 
superiority  is  in  seeing  that  there  is  really  no 
confusion,  and  that  the  veil  hiding  the  truth  is  rather 
imaginary  than  real.  And  he  will  show  the  same 
acuteness  in  matters  of  evidence,  and  will  clearly  see 
therein  a  meaning  and  potency  which  others  over- 
look, until  he  chooses  to  show  them,  and  then  for  a 
long  while  they  can  see  nothing  else. 

I  once  noted  in  a  trial,  a  singular  obscuration  of 
the  question  at  issue  to  both  court  and  counsel,  and 
both  of  the  counsel  were  deservedly  eminent,  and  the 
judge  was  one  of  the  quickest,  and  acutest  men    I 


374  CONDUCT    OF    LITIGATION. 

ever  knew.  The  issue  submitted  to  the  jury,  arose 
under  a  local  law  out  of  a  distribution  in  kind  of  an 
intestate's  estate  between  two  heirs.  One  con- 
ceiving that  he  had  not  received  his  full  share, 
sued  the  other  in  order  to  be  equalized.  The  defen- 
dant contested  solely  on  the  facts,  urging  that  the 
plaintiff  had  been  fully  equalized.  There  was  much 
testimony  on  both  sides,  and  the  evidence  strongly 
preponderated,  that  the  defendant's  portion  exceeded 
in  value  that  of  the  plaintiff 's,  say  $i,ooo.  Now 
the  counsel  for  both  sides  in  their  openings  and 
arguments,  and  the  quick-sighted  judge  in  his 
instructions,  all  assumed  that  the  jury  should  find 
for  the  plaintiff  whatever  amount  the  defendant's 
share  exceeded  the  other's  in  value.  Just  as  the  jury 
retired,  an  old  layman  who  had  long  made  a  respect- 
able figure  in  that  court  as  a  grand  juror,  and  who 
was  then  permitted  a  seat  inside  the  bar,  approached 
the  judge  and  laughingly  said  to  him  in  an  under- 
tone, "  You  have  only  put  the  boot  on  the  other 
leg."  "  Bring  that  jury  back,"  roared  the  judge  to 
the  bailiff,  who  at  once  obeyed.  "  Gentlemen," 
resumed  the  court  to  the  jury,  "  I  have  made  a  great 
mistake.  If  you  find  that  the  defendant's  share 
exceeds  the  plaintiff's  in  value,  you  will  then  find  for 
the  plaintiff  one  half  of  such  excess."  The  yxxy 
ratired  again,  and  soon   returned  with  a   verdict  .n 


CHARACTER     OF     THE    LAWYER.        375 

accordance  with  the  last  instructions.  This  was  a 
similar  defect  of  vision  in  the  counsel  and  the  judge, 
to  that  of  the  lawyers  who  laid  their  heads  together 
over  the  fraudulent  permit,  and  it  was  remarkable 
that  what  seemed  so  plain  at  last,  had  not  been  seen 
from  the  first.  This  was  another  Qg^  which  stood 
up  on  its  broken  end. 

Examples  would  be  multiplied  to  no  good  pur- 
pose. Every  lawyer's  experience  affords  multitudes. 
We  are  only  now  calling  attention  to  the  tran- 
scendent importance  in  the  practice  of  law,  as  well  as 
in  all  other  human  undertakings,  of  seeing  things 
right.  This  talent  or  genius,  call  it  what  you  may, 
if  coupled  with  a  preponderant  force  of  will,  as 
insisted  upon  for  the  general  by  Marmont,  in  the 
passage  cited  above,  spontaneously  exalts  its  possessor 
to  command  in  any  business  of  life  that  he  may 
make  his  own.  Themistocles  meant  to  claim  this 
crown  for  himself,  when  he  erected  near  his  house 
the  private  chapel,  "  in  honor  of  Artemis  Aristobule, 
or  Artemis  of  admirable  counsel." 

But  it  is  to  be  remembered  that  the  moral 
element  is  yet  more  important.  Not  only  history, 
but  the  experience  of  any  observant  man,  is  full  of 
instances  of  men  good  in  counsel,  but  deficient  in 
action.  And  we  must  again  make  use  of  Marmont's 
distinction,  when  he  says,  as  we  have  already  quoted 


3/6  CONDUCT    OF    LITIGATION. 

in  this  chapter,  that  the  general's  force  of  character 
must  be  superior  to  his  mind.  It  seems  that  Shake- 
speare intended  his  Hamlet  to  represent  that  type 
of  characters,  whose  great  minds  are  joined  with 
feeble  wills.     Colridge's  criticism  is  accurate  : 

"  In  Hamlet  he  seems  to  have  wished  to  ex- 
emplify the  moral  necessity  of  a  due  balance 
between  our  attention  to  the  objects  of  our  senses, 
and  our  meditation  on  the  workings  of  our  minds — 
an  equilibrium  between  the  real  and  imaginary 
worlds.  In  Hamlet,  this  balance  is  disturbed :  his 
thoughts  and  the  images  of  his  fancy,  are  far  more 
vivid  than  his  actual  perceptions,  and  his  very 
preceptions  instantly  passing  through  the  medium 
of  his  contemplations,  acquire  as  they  pass  a  form 
and  a  color  not  naturally  their  own.  Hence  we  see 
a  great,  an  almost  enormous  intellectual  activity,  and 
a  proportionate  aversion  to  real  action  consequent 
upon  it,  with  all  its  symptoms  and  accompanying 
qualities." 

The  ^amlets  of  the  Bar,  who  sec  and  understand 
all  your  points,  and  are  full  of  valuable  suggestions 
for  you,  never  work  except  spasmodically.  They 
seem  born  for  contemplation,  instead  of  action,  and 
their  position  at  last  becomes  rather  that  of  amuz 
curicB  than  that  of  practitioners. 

The  good  lawyer  is  pre-eminently  a  man  of  action. 


CHARACTER     OF     THE    LAWYER.         ^^yy 

n^  can  no  more  rest  if  he  would,  than  Napoleon 
could  have  done  in  Italy  surrounded  by  the 
Austrians.  Day  after  day,  adversaries  attack  him 
or  force  him  to  attack,  until  when  he  is  in  large 
practice  he  is  inclined  to  say  with  Macbeth : 

"The  flighty  purpose  never  is   o'ertook, 
Unless  the  deed  go  with  it.     From  this  moment, 
The  very  firstlings  of  my  lieart  shall  be 
The  firstlings  of  mv  hand." 

Shakespeare  makes  Hamlet,  as  he  sees  men  ot 
resolute  action  marching  off  to  war,  exclaim  upon 
his  halting  self : 

—  "  What  is  man, 
If  his  chief  good  and  market  of  liis  time 
Be  but  to  sleep  and  feed.'  a  beast — no  more. 
Sure  he  that  made  us  with  such  large  discourse, 
Looking  before  and  after,  gave  us  not 
That  capability  and  godlike  reason 
To  fust  in  us  unused.     Now,  whether  it  be 
Bestial  oblivion  or  some  craven  scruple 
Of  thinkiag  too  precisely  on  th'  event — 
A  thought, which,  quartered,  hath  but  one  part  wisdom, 
And  ever  three  parts  coward — 1  do  not  know 
Why  yet  I  live  to  say,  '  This  thing's  to  do.'  " 

This  passage  presents  the  hesitation  of  the  man  of 
mind,  who  will  not  act  with  profound  psychological 
insight. 

The  character  of  Themistocles  is  the  opposite  of 
the  lagging  Hamlet,  and  he  is  perfect  in  both   in 


378  CONDUCT    OF    LITIGATION, 

sight  and  promptness  of  action.  He  sees  instantly 
and  he  acts  instantly.  To  borrow  from  Shakespeare 
again,  he  does  not  think  too  precisely  on  the  event, 
and  the  very  firstlings  of  his  heart  are  the  iirstlings 
of  his  hand.     Grote,  paraphrasing  Thucydides,  says  : 

"  He  [Themistoeles]  conceived  the  complications 
of  a  present  embarrassment,  and  divined  the  chances 
of  a  mysterious  future,  with  equal  sagacity  and 
equal  quickness.  The  right  expedient  seemed  to 
flash  upon  his  mind  extempore,  even  in  the  most 
perplexing  contingencies,  without  the  least  necessity 
for  premeditation.  He  was  not  less  distinguished 
for  daring  and  resource  in  action  :  when  engaged  on 
any  joint  affairs,  his  superior  competence  marked 
him  out  as  the  leader  for  others  to  follow,  and  no 
business,  however  foreign  to  his  experience,  ever 
took  him  by  surprise,  or  came  wholly  amiss  to 
him."  ■ 

We  will  transcribe  a  short  passage  of  Thucydides  : 
"  For  Themistoeles  was  one  who  most  clearly  dis- 
played the  strength  of  natural  genius,  and  was 
particularly  worthy  of  admiration  in  this  respect 
more  than  any  other  man  ;  for  by  his  own  talent, 
and  without  learning  anything  towards  it  before,  or 
in  addition  to  it,  he  was  both  the  best  judge  of 
things  present  with  the  least  deliberation,  and  the 
History  of  Greece,  chap,  xxxvi. 


CHARACTER     OF     THE    LAWYER.        379 

best  conjccturer  of  the  future  to  the  most  remote 
point  of  what  was  likely  to  happen.  Moreover  the 
things  which  he  took  in  hand  he  was  also  able  to 
carry  out  ;  and  in  those  in  which  he  had  no  expe- 
rience, he  was  not  at  a  loss  to  form  a  competent 
judgment.  He  had,  too,  the  greatest  foresight  of 
what  was  the  better  course  or  the  worse,  in  what 
was  as  yet  unseen.  In  a  word  by  strength  of 
natural  talent  and  shortness  of  study,  he  was  the 
best  of  all  men  to  do  off-hand  what  was  neces- 
sary." ' 

Forgetting  the  corruption  of  Themistoclcs  and 
his  treachery,  and  looking  only  at  him  as  a  man  of 
action,  his  character  is  almost  ideally  perfect.  We 
may  not  expect  to  parallel  him  in  the  dull  rounds  of 
our  little  professional  lives,  but  it  will  surely  give  us 
a  clearer  conception  to  our  great  profit  of  the  full- 
summed  man  of  action,  to  contemplate  his  perfection 
as  handed  down  to  us  in  history. 

The  man  of  action  must  have  courage,  which  for 
the  lawyer  and  general  means  rather  coolness  and 
self-command,  than  the  more  common  notion  of 
bravery.  He  who  in  the  most  desperate  straits,  such 
as  the  unexpected  desertion  of  a  witness  on  the 
stand  to  the  adversary,  or  the  development  of  an 
entirely  misconceived  case  of  the  opposite  party, 
1  Thucyd.  I.  13S  (Dale's  TransJation). 


380  CONDUCT    OF    LITIGATION. 

never  loses  his  self-possession,  but  instantly  does  the 
best  that  he  can,  has  the  necessary  courage.  This 
courage  keeps  the  eyes  always  open,  and  things  are 
seen  right.  To  see  right,  we  say  again,  is  the  highest 
achievement  of  genius.  To  see  danger  right  is  at 
the  same  time  to  see  the  true  escape.  "  Out  of  this 
nettle,  danger,  we'll  pluck  this  flower,  safety,"  said 
never-daunted  Percy.  What  appears  danger  to  the 
common  man,  is  Seen  by  the  good  eye  to  be  mere 
menace.  Nor  can  conscious  resolve,  nor  anger,  nor 
passion,  serve  for  this  calm  collectedness.  Again  we 
must  appeal  to  Shakespeare,  v/ho  makes  Enobarbus 
say  of  Antony,  rousing  himself  passionately  for  a  last 
effort  with  the  conquering  Augustus  : 

"  Now  he'll  outstare  the  lightning.     To  be  furious 
Is  to  be  frighted  out  of  fear  ;  and  in  that  mood 
The  dove  will  peck  the  estridge :  and  I  see  still 
A  diminution  in  our  captain's  brain 
Restores  his  heart.     When  valor  preys  on  reason, 
It  eats  the  sword  it  fights  with." 

And  another  character  in  the  same  play  philo- 
sophically says, 

—  "  never  anger 
Made  good  guard  for  itself" 

How  often  do  we  see  this  exemplified  in  prac- 
tice. A  suit  or  a  defense  counselled  in  heat,  or  any 
passionate  conduct,  nearly  always  ends  disastrously. 


CHARACTER     OF     THE    LAWYER.        38 1 

Tlie  good  lawyer  counsels  neithci  in  anger  nor 
in  haste. 

And  as  the  lawyer  is  so  practical,  he  will  be 
observed,  as  we  have  said  before,  avoiding,  whenever 
he  can,  all  questions  both  of  law  and  fact,  which  he 
has  not  time  to  settle  satisfactorily.  He  does  not 
regard  court  as  a  debating  club.  His  evasion  of 
difficulties  is  instinctive.  While  the  younger  coun- 
sel are  wrangling,  he  has  forgotten  the  question,  and 
is  about  to  deliver  battle  from  the  vantage  ground 
of  plain  and  palpable  truth. 

He  avoids  attempting  impossibilities.  There  are 
many  things  which  he  knows  to  be  stronger  than 
himself.  He  husbands  his  strength  and  efforts  for 
practicable  achievements.  He  knows  only  the  prin- 
ciples by  which  judges,  out  of  a  varying  and  many- 
sided  nature,  decide  legal  questions,  and  the  influ- 
ences which  lead  juries,  often  changeable  and 
mercurial,  to  their  findings.  In  all  of  his  calculations 
while  he  makes  the  necessary  allowance  for  weakness, 
infirmity,  and  even  ignorance,  he  assumes  the  arbiters 
of  his  cases  to  be  honest.  The  question  he  proposes 
to  himself,  is  by  what  principle  shall  I  win  1  What 
authority  or  what  reasoning  will  bring  the  judge  to 
me  here,  and  what  combinations  and  presentments 
of  my  evidence  will  either  convince  or  persuade  the 
jury  to  find  for  me   there  ?      But  the  pettifogger  is 


382  CONDUCT    OF    LITIGATION. 

known  by  his  reliance  on  trick.  His  study  is  to 
devise  deceits.  He  plays  with  loaded  dice.  He 
meditates  a  partial  juror,  a  prompted  witness,  a 
distorted  exhibition  of  the  case,  or  some  other  sham 
by  which  falsehood  is  suggested  or  the  truth  sup- 
pressed. 

But  the  true  lawyer  knows  that,  like  warfare, 
litigation  has, too,  its  code;  and  that  however  hard 
he  hits,  he  must  fight  fair,  and  always  obey  the  well- 
established  laws  of  honorable  combat. 

It  is  hard  to  describe  the  character  of  the  suc- 
cessful lawyer.  He  is  to  be  self-confident  without 
self-conceit ;  he  is  to  combine  the  extremes  of  bold- 
ness and  caution  :  for  he  is  to  be  prompt,  even  in  the 
most  doubtful  and  delicate  matters,  to  decide  on 
action,  and  then  he  must  act  with  celerity  and  firm- 
ness ;  and  yet  both  his  decision  and  action  are  to  be 
deliberate.  It  is  almost  a  misnomer  to  call  him 
a  lawyer.  His  knowledge  of  the  law  is  the  small- 
est part  of  his  professional  attainments.  He  must 
know  mankind  better  than  he  does  the  code  and 
reports,  and  he  must  understand  the  infinite  play 
of  the  feelings,  which,  far  more  than  their  reasons, 
sway  the  people  with  whom  he  deals- — parties, 
witnesses,  jurors,  even  the  judges  themselves.  He 
must  be  able  to  tell,  almost  without  premeditation, 
when  the  courts  will  administer  the  letter,  and  when 


CONDUCT    OF   LiriGAriON.       '        l^l 

the  .pirit,  of  a  statute  in  question.  He  must  at  all 
tii'i'S  know  the  most  darling  secret  of  his  adversary. 
He  must  recognize  truth  intuitively  when  he  hears  it, 
and  falsehood  likewise,  and  be  ever  capable  of  mak- 
ing both  plain  men  and  learned  judges  see  with  his 
own  eyes.  He  can  not  be  infallible  in  every  instance  ; 
but  when  he  sees  right  so  often  that  his  few  mistakes 
become  wonders  and  common  talk,  he  is  that  man 
af  men  in  society,  that  development  of  modern 
training  and  culture,  of  which  every  one  of  our  states 
can  show  instances,  the  pride  and  glory  of  the  Amer- 
ican Bar. 

So  much  for  this  miniature  of  the  good  law- 
ver.  The  picture  is  not  over-draw^n.  Romance  and 
adventure  fill  his  daily  life.  He  is  more  than  a  mere 
frothy  speaker  to  tickle  and  set  agape  the  populace, 
and  more  than  the  lucky  draw^er  of  great  prizes  in  his 
fees.  He  is  a  patient,  laborious,  intense  worker, 
living  in  his  cases,  and  hanging  over  them  as  affec- 
tionately as  a  mother  over  hex  children.  He  fights 
as  many  battles  in  a  year  as  a  general  in  a  lifetime, 
and  over  and  over  expends  on  some  controversy  of 
trivial  moment,  that  pays  him  only  with  the  thanks 
of  the  poor  or  the  blessings  of  the  widow  and  orphan, 
more  invention,  labor,  and  skill,  than  often  fill  a  long 
campaign,  which  ends  in  an  ever-memorable  defeat 
of  overcountinof  thousands. 


384  CONDUCT    OF    LITIGATION. 

We  have  tried,  conscientiously  and  laboriously 
to  make  a  full  exposition  of  the  principles  according 
to  which  the  lawyer  accepts,  prepares,  and  tries  his 
cases; and  in  this  last  chapter,  we  have  done  our  best 
to  sketch  his  intellectual  and  moral  features,  and 
combine  them  into  his  honest  likeness. 

We  hope  that  the  novelty  of  the  subject,  and  the 
failure  of  the  books — even  the  lives  of  the  great  law- 
yers— to  treat  of  it,  will  excuse  our  many  shortcom- 
ings. The  Conduct  of  Litigation  has  been  too  long 
without  its  manual.  We  do  not  pretend  to  have 
fully  supplied  the  great  want.  We  trust,  however, 
that  as  an  humble  and  solitary  pioneer,  we  have 
somewhat  smoothed  the  way  for  the  column  of  or- 
ganized workers  behind. 


INDEX. 


Accuracy — 31,  et  seq.,  382. 

Adventures  of  an  Attorney,  etc. — note  as  to  authorship  of, 

308. 
Advocate — what  should  be  his  motto,  351. 
Aggression — and  non-aggression,  173. 
Amicable  settlement — of  litigation  by  counsel,  177. 
Avios,  Prof. — as  to  need  of  counsel  by  litigant,  46. 
Arbitration,  177. 
Agreement,  337,  et  seq. 

Ascendencies — preponderances,  and  superiorities  in  litiga- 
tion, 20,  48,  106. 
Associates — (counsel),  213. 
A  ttorney — 

His  position  in  England,  41. 

In  America,  200. 

Careful  written  preparation,  117. 

Attorney  and  counsel  in  England  an  unnatural  and 
pernicious  division  of  labor,  123,  249. 
Bautain — his  Art    of  Extempore  Speaking   highly   com- 
mended, 349. 
Begin — right  to,  236,  341. 
Boldness — when  proper  in  conduct,  167. 
Briefs,  182,  et  seq. 
Brougham,  Lord — 

Severe  strictures  on  Gifford's  opening  of  case  against 
the  Queen,  230. 

Comments  on  Majocchi,  277. 


386  INDEX, 

Broivn,  David  Paul— 

See  Golden  Rules. 

As  to  client's  right  to  command  service  of  his  law- 
yer, 59. 

As  to  English  system  of  attorney  and  counsel,  118 

Asto  intelligent  purposein  examining  witnesses,  129. 

As  to  maintenance  of  self-composure,  133. 

As  to  importance  of  examination  of  witnesses,  325 
Bulwer — 

Excerpt  from  his  "  My  Novel,"  to  illustrate  exam- 
ination of  dull  witnesses,  253. 
Burty  A. — 

Took  no  bad  cases,  53. 

His  preparation  of  cases,  142. 

Loved  to  surprise  his  adversary,  i6o, 

His  speaking,  346. 

Campbell,  Lord — 

His  picture  of  reign  of  justice  in  the  King's  Bench, 

351- 
Cases — 

Consideration  of  offered,  5. 

How  to  investigate,  accept,  or  decline,  27,  et  seq. 

Easy,  28,  48,  214. 

Of  doubtful  right,  62,  63,  341. 

Good,  but  hard  or  impossible  to  gain,  64. 
Celerity,  132. 
Choate,  Rnfns — 

His  careful  preparation,  139. 

Had  a  plan  always,  150. 

His  note-taking,  333,  335. 

Argues  more  elaborately  as  he  grows  older,  349. 
Client — 

Not  to  be  confided  in  always,  88. 

Sqc  Ethics ;  Lawyer  ;  Secrecy. 


INDEX.  387 

Common  Lazv — 

Its  persistence  after  the  right,  339. 
Consultation — of  counsel,  212. 
Continuance,  214. 
Cooky,  Judge — 

Investigation   of  abstract  submitted  to  lawyer  for 
advice  as  to  title,  42. 
Counsel.     See.  Attorney  ;  Laivyer. 
Courage,  153. 
Cox — (author  of  Advocate) 

As  to  examination-in-chief,  248. 

As  to  cross-examination,  288,  ct  seq. 

As  to  re-examination,  309,  ct  scq. 

Gives  too  great  prominence  to  cross-examination  in- 
tended to  make  witness  contradict  himself,  299. 

Does  not  attend  to  character  of  witness,  300. 

As  to  note-taking,  328. 

As  to  addressing  juries,  348. 

Defeat,  360,  ct  seq. 
Deliberation — 

Its  importance  to  lawyer,  132. 
Demon t,  Louise — • 

Famous  cross-examination  of,  276,  286. 
Diligence — 

Its  importance  to  lawyer,  44,  132. 
Docutnents — 

To  be  carefully  inspected,  32,  34. 

Copies  and  abstracts  of,  193. 

Eloquence,  6,  116,  340,  350. 

Its  ancient  influence,  338. 
Erskine — 

Secret  of  his  power,  350. 


388  INDEX. 

Ethics,  59. 
Evidence — 

See  the  chapters  on,  236,  et  seq. 

Games — 

Litigation  compared  to,  i. 
General — 

How  like  the  lawyer,  364. 
Golden  Rules— {pi  David  Paul  Brown),  238,  243,  300,  304, 

325. 

Hale— 

Begins  practice  by  being  over-fastidious,  57. 
Hamlet,  376. 
Initiative,  173. 
Inqii  iry — m  o  d  e  r  n , 

Grows  more  and  more  careful,  30,  332,  338. 

Joviinis  Art  of  War,  6. 
Jury — 

Selecting,  214,  217. 

Opening  pleadings  to,  220. 

Opening  case  to,  223. 

Addresses  to,  3480 

Kenyan — 

His  quickness,  130. 

Lazv — 

Preparation  on,  94,  et  seq. 

Distinguished  as  a  subject  from  the  practice  of  it,  9. 
Of  the  books,  not  that  administered  at  nisiprius,  25. 
Becomes  slowly  more  certain,  94. 
Occasional  professional  triumphs  on  law  points,  96, 
100. 


INDEX.  389 

Law —  Contimicd. 

The  three  kinds  for  practitioner,  loi. 

A  great  armory  of  remedies,  102. 

Search  for  principles  of,  108. 

Adverseness  of  judges  to  ruling  avowedly  new  prin- 
ciples of,  1 12. 

And  fact,  19. 

More  forensic  controversy  as  to  fact  than  law,  94. 
Law-suit — 

Defined,  i. 
Laivyer — 

Contrasted  with  judge  and  law-author,  II. 

His  office  and  representative  character,  12,  t6. 

Partiality  of,  13. 

Parallel  of  with  husband,  army,  etc.^  13. 

Privilege  to  take  any  case,  15,  41. 

His  necessary  legal  knowlege,  16,  91. 

His  talent  for  handling  facts,  16. 

Personal  influence  of,  24,  87. 

Duty  when  consulted,  27. 

Will  think  of  evidence  not  in  mind  of  client.  31. 

Good,   character  of,  50,  52,  53,  106,  113,    153,    134, 
137    138    144,  162,  326,  333,  344,  363.  et  seq. 

Instance  of  successful,  34. 

Who  is  not  dangerous  till  he  has  lost,  52. 

Too  busy  to  originate  business,  64. 

Young,  68. 

Legal  judgment  of,  1 13. 

The  eminent,  neglects  preparation  of  case  too  much, 
116. 

Plurality  of  counsel,  125. 

Local  counsel,  128. 

Should  be  able  always  to   stand  a  Socratic    \  rvv^' 
examination  on  any  of  his  cases,  136. 


390  INDEX. 

La  wyer —  Con  t  in  ucd. 

Leading  counsel,  241,  309,  338. 
Lcnctra — 

Battle  of,  148. 
Litigation — 

Parallel  of  to  warfare,  and  games,  I. 

Elements  of,  18. 

MajoccJii — 

Famous  cross-examination  of,  277,  286. 
Marathon — 

Battle  of,  147. 
Marniont — 

His  Spirit  of  Military  Institutions,  6. 

His  character  of  the  general,  364. 
Memoranda,  185,  187,  331. 

Nezv  trial,  354,  ct  scq. 
NiebiiJir — 

His  remarkable  memory,  185. 
Note-taking,  328,  et  seq.,  355. 

Objections — to  testimony,  247,  319. 

(9/^;z/;/^^— of  pleadings,  and  of  evidence,  218,  235. 

Pengelly,  Sergeant — 

Throws  up  his  brief,  24. 
Fhocioji — 

Shortness  of  his  speeches,  346. 
Phonography,  335. 

Plan  of  Conduct — of  the  case,  52,  195,  145,  et  seq.,  210. 
Pleadings,  114,  190. 

See  Openings. 
Preparation — of  case,  4,  6,  20,  71,  et  seq.,  244,  245,  246,  312. 
Probabilities,  48. 
Procrastination,  44,  130,  356. 


INDEX.  391 

Profession— \.\\t,  15,  65, 
Promptness,  44. 
Quintilian — 

Counsels  careful  preparation  of  case,  2S. 

Report  of  ease — 

Rarely  shows  how  case  was  prepared,  9. 
Right  and  Justice — 

Influence  of,  22. 
Rights,  legal — 

Contrasted  with  moral,  62. 

ScJiomberg — • 

His  reply  when  told  that  the  enemy  zvould ^^\t^  216 
Scott's — (Lord     Eldon)     success   ■when    a   young   man    ih 

Akroyd  v.  Smithson,  96. 
Secrecy,  165. 

Secrets  of  cases,  86,  87,  88. 
Se/f-  rclia  nee — 

Of  lawyer  to  be  cultivated,' 202,  3?/, 
Sentiments — 

The  average,  important  for  lawyer  to  know,  23, 
Stratagem,  ^6,  89. 
Strategy.,  3,  167. 
Success  in  zvar,  etc.,  i. 

Tactics,  3,  167,  216. 
Tenter  den.  Lord — 

His  weakness  in  suspecting  fraud,  23 
Themistocles,  2)77- 
Theory  of  case,  52. 
Trial — ^ 

Importance  of  conducting  right,  4. 

Impartiality  of,  intended  by  the  law,  14. 

Talent  for  managing,  207,  211. 


392  INDEX. 

Victory,  360,  et  scq. 
Views — ordinary,  of  mankind. 
Important  to  lawyer,  23. 

Warfare —  * 

Litigation  compared  to,  2,  5,  42. 
Warren,  Mr. — 

Advice  to  attorneys  meditating  case  offered,  35. 

Advice  to  overt^xovt  rather  than  under^rovQ,  92. 

As  to  briefs,  196,  et  seq. 
Whately — 

•  Recommends  natural  manner  in  speaking,  349. 
Witnesses — 

See  chapters  on  evidence, 

Should  be  carefully  sifted  in  private  by  counsel,  31, 
32,  33,  121,  123. 

Taking  memoranda  of  their  statements,  ^2. 

Committing,  to  their  narratives,  75. 

Compelling  attendance  of,  ^6. 

Examining  by  commission,  75,^324. 

Perpetuating  testimony  of,  ']6. 

Xist  of,  192. 

Yorke,  Mr. — (Lord  Hardwicke)  favored  by  the  Chancellor, 
Lord  Macclesfield,  24. 


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